The UK remains largely bound by EU law until the end of 2020. From January 2021 the British parliament will be entitled to amend the Equality Act without regard to EU law, subject to the outcome of negotiations with the EU. So far as the Equality Act is not amended, UK courts should normally (though not always) continue to interpret the Act in line with EU Court decisions made before the end of 2020.
- UK membership of the EU ended at 11pm on 31st January 2020. However under the Withdrawal Agreement the UK remains bound by almost all EU law during the ‘implementation period’ which lasts until the end of 2020. See UK remains bound by EU law until the end of 2020.
- Accordingly at present and until the end of 2020, UK legislation and court decisions must still comply with EU discrimination law.
- From 11pm on 31st December 2020, existing EU-derived law becomes British law which can then be amended by the British parliament or government. That is subject to any agreement on future relationship with the EU, and is subject to the Withdrawal Agreement, eg on Northern Ireland.
- So the Equality Act continues after Brexit. How far will EU law and EU Court of Justice decisions be relevant to its interpretation after the end of 2020?
- In general UK courts will still follow EU Court decisions made before the end of 2020, but need not follow those made after. The Supreme Court and Court of Appeal need not necessarily follow EU decisions made up to the end of 2020, but it seems that even they will “normally” follow those decisions. Below From 2021: effect of EU law when interpreting Equality Act.
- Except so far as the UK parliament or government amends the Equality Act after the end of 2020, UK courts should continue to interpret its employment provisions to comply with the EU Framework Employment Directive wherever possible. This can include the UK courts departing from the words of the Equality Act. Below Marleasing principle: interpreting the Equality Act to conform with the directive.
- As to possible amendment of the Equality Act after 2020:
- A key point will be how far any agreement with the EU on future relationship provides for minimum levels of workers’ rights: Any restrictions in EU agreement on future relationship?
- However unless otherwise agreed in negotiations with the EU, the UK will be entitled to amend the Equality Act without regard to EU law after the end of 2020.
- The Equality Act is likely to continue for the foreseeable future but some changes may be made by Parliament (unless otherwise agreed with the EU), eg a cap on compensation. See below What is likely to happen to the Equality Act after Brexit?
UK remains bound by EU law until the end of 2020
UK membership of the EU ended at 11pm on 31st January 2020 under the terms of the Withdrawal Agreement. However the UK remains largely bound by EU law during the present implementation period which lasts until 31st December 2020.
Withdrawal Agreement and implementation period
The Withdrawal Agreement negotiated between the UK and EU covers financial settlement, citizens rights and Northern Ireland. It also provides for an implementation period. This period started when the UK left on 31st January and lasts until 11pm on 31st December 2020 (see below on possible extension). During this implementation period the UK remains bound by almost all EU law, and the EU and UK will seek to reach an agreement on their long-term future relationship. The Withdrawal Agreement is accompanied by a non-binding ‘Political Declaration’ on the future relationship. Links:
- Withdrawal Agreement and Political Declaration (gov.uk) – full text of the agreement and declaration;
- House of Commons library briefing: The October 2019 EU UK Withdrawal Agreement (parliament.uk), and more of their briefings on Brexit (parliament.uk).
The main UK legislation implementing the UK’s exit from the EU is the EU (Withdrawal) Act 2018 (legislation.gov.uk) as amended by the EU (Withdrawal Agreement) Act 2020. The link to the 2018 Act above should now show the amendments.
Under the Withdrawal Act 2018 as amended:
- “exit day” was 11pm on 31st January 2020, when the UK ceased to be a member of the EU. Under s.20(1) EU (Withdrawal) Act 2018 this was to be 29th March 2019, two years after the UK gave notification under Article 50 of the Treaty on European Union (instituteforgovernment.org.uk). However the UK’s membership was extended by agreement with the EU. The last agreed extension was implemented in the UK by SI 2019/1423 changing the “exit day” in the 2018 Act to 31st January 2020.
- “IP completion day” is 11pm on 31st December 2020 (s.39(1)-(5) EU (Withdrawal Agreement) Act 2020, applied to the 2018 Act by s.1A(6)).
Extension of implementation period?
I assume on this page that no extension of this period will be agreed, so it will end at 11pm on 31st December 2020. Under the Withdrawal Agreement the UK and EU could agree (up to 1st July) to extend the implementation period by up to two years. S.15A EU (Withdrawal) Act 2018, inserted by the 2020 Act, barred the government from agreeing an extension under the relevant provision. In theory the EU and UK could probably still agree an extension if they wished (ukandeu.co.uk).
EU law continues during implementation period
The Withdrawal Agreement provides that the UK remains bound by nearly all EU law during the implementation period, ie until the end of 2020 (Article 127(1)). As from exit day, 31st January 2020, s.1 EU (Withdrawal) Act 2018 repealed the European Communities Act 1972, the main UK statute saying EU law applies in the UK. However, to give effect to the Withdrawal Agreement, s.1A says that despite s.1 the European Communities Act 1972 remains in effect with certain modifications until the end of the implementation period on 31st December 2020.
The reason why EU law has effect in the UK is because the British Parliament passed an Act of Parliament saying so, namely the European Communities Act 1972. The Westminster Parliament remains sovereign and can amend or repeal this Act, as it is doing through the EU (Withdrawal) Act 2018.
Equality Act and discrimination directives during implementation period
Accordingly until the end of 2020 the UK remains bound by the EU Framework Employment Directive, including as regards disability discrimination. The Equality Act 2010 cannot be amended to conflict with the directive. Also UK courts and tribunals remain bound by decisions of the EU Court of Justice, and must continue to interpret the Equality Act in the light of the directive and EU Court decisions, as discussed on this website.
(It seems that Northern Ireland will still have to comply with the Framework Employment Directive even after the end of 2020, under the Northern Ireland Protocol to the Withdrawal Agreement.)
From 2021: introduction
The EU (Withdrawal) Act 2018 provides essentially that after the end of 2020, laws derived from the EU continue but as part of UK law. These laws can be changed by the UK Parliament which is no longer constrained by EU law (unless the UK agrees otherwise with the EU). In the interests of legal certainty, UK courts will normally continue to be bound by decisions of the EU Court of Justice made before the end of 2020, unless Parliament has amended the particular law.
From 2021: Equality Act continues even after Brexit
The Equality Act 2010 will continue as it is even after the end of 2020, unless and until Britain amends it. This is because the Equality Act is a British statute, passed by the Westminster Parliament.
That is also consistent with the government’s approach to Brexit generally as regards existing laws. Its approach is that these laws (EU or not) should continue after Brexit, but can then be amended by Parliament (or by the government in some cases) without being constrained by EU requirements. This approach was set out in the government’s The Repeal Bill: White Paper (gov.uk) of March 2017 and is implemented in the legislation. Accordingly, even if the employment provisions of the Equality Act (ie the parts of it implementing EU law) did not continue in force in their own right, they would continue in force under s.2 EU (Withdrawal) Act 2018.
Incidentally, Britain introduced disability discrimination law some years before the European Union did, and the EU directive on it was influenced by British law. See below UK disability discrimination law is British in origin.
Regulations make some technical changes to the Equality Act and related regulations with effect from the end of 2020:
- The Equality (Amendment and Revocation) (EU Exit) Regulations 2019, SI 209/305; and
- The Equality Act 2010 (Statutory Duties) (Wales) (Amendment) (EU Exit) Regulations 2019, SI 2019/120.
(Both regulations say they apply from ‘exit day’, but under Schedule 5 para 1 EU (Withdrawal Agreement) Act 2020 that is read as the IP completion day, ie the end of 2020).
From 2021: effect of EU law when interpreting Equality Act
- After 2020 UK courts will generally remain obliged to follow the Framework Employment Directive and decisions of the EU Court of Justice made before the end of 2020, except so far as the UK Parliament or government has amended the particular UK law after 2020. Below Supremacy of EU law and Pre-2021 EU case law will normally still apply.
- The Supreme Court and Court of Appeal (and some equivalent courts) are not necessarily bound by decisions of the EU Court made before the end of 2020, though it seems even they will “normally” follow those decisions.
- Apparently UK courts will be bound to follow pre-2021 decisions of UK courts on EU law to the same extent as now, except so far as the relevant UK law has been amended after 2020. Below Pre-2021 EU case law will normally still apply.
- The aim is to maximise certainty, so people know what the law is.
Supremacy of EU law until UK modifies its laws
UK legislation says that the principle of supremacy of EU law continues to apply after the end of 2020 as regards enactments passed or made before the end of 2020 (s.5(2) EU (Withdrawal Act) 2018). However this supremacy principle does not apply if the UK law has been modified after the end of 2020, unless applying the supremacy principle is consistent with the purpose of the modification (s.5(3)).
Therefore after the end of 2020 UK courts should continue to interpret the Equality Act on the basis that it must comply with the Framework Employment Directive, except so far as the Equality Act is amended after 2020, normally by the UK Parliament. (See further below Marleasing principle).
Can the Supreme Court and Court of Appeal depart from the principle of supremacy of EU law after 2020, even if the UK law is unamended? Maybe not, or least theoretically not. After 2020 the Supreme Court and Court of Appeal are allowed to depart from decisions of the EU Court of Justice in some circumstances (below Exception for the Supreme Court and Court of Appeal), but the UK legislation does not say they can depart from the principle of supremacy of EU law. However after 2020 the Supreme Court or Court of Appeal may decide to interpret the EU law in a different way from the EU Court of Justice. So perhaps the Supreme Court and Court of Appeal must follow EU law, including the Framework Employment Directive, but may decide to interpret the directive in a different way from the EU Court (albeit they will “normally” follow pre-2021 decisions of that court). In any event, an amendment of the UK legislation by the UK Parliament will override any former supremacy of EU law.
The position is similar for ‘retained general principles of EU law’ (below).
Pre-2021 EU case law will normally still apply
S.6(3) EU (Withdrawal) Act 2018 and regulations say that in interpreting ‘retained EU law’, the UK courts will still have to follow relevant decisions made before the end of 2020 by the EU Court of Justice, or by UK courts on EU law, subject to two exceptions:
- the Supreme Court and Court of Appeal (below) need not necessarily follow EU Court decisions, though it seems even they will treat pre-2021 EU Court decisions as “normally binding” (below What test is applied in deciding whether to depart from EU Court decisions?); or
- so far as the law has been modified (eg amended by the UK Parliament) after the end of 2020, unless following the EU case law is consistent with the intention of the modifications: s.6(6).
‘Retained EU law’ includes UK legislation which implements EU law, and should therefore include the employment provisions of the Equality Act, or at least most of them. See below Technical note: why the Equality Act employment provisions are ‘retained EU law’.
Accordingly most UK courts will remain bound by decisions of the EU Court of Justice made before the end of 2020, except so far as the Equality Act has been amended after the end of 2020.
Apparently UK courts will be bound to follow pre-2021 decisions of UK courts on EU law in relation to the Equality Act to the same extent as now, except so far as the Equality Act has been amended after the end of 2020.
Exception for the Supreme Court and Court of Appeal
The Supreme Court will be able to depart from EU Court of Justice decisions made before the end of 2020 where it would depart from its own decisions (s.6(5) EU (Withdrawal) Act 2018). The Supreme Court “must apply the same test as it would apply in deciding whether to depart from its own case law” (see next heading).
The Court of Appeal and some equivalent courts will also be able to depart from EU Court decisions made before the end of 2020, applying that same test of whether the Supreme Court would depart from its own case law. So all courts allowed to depart from EU case law apply the same test, which makes a lot of sense. This is under draft regulations (legislation.gov.uk) issued in October 2020, which follow a government consultation Departure from retained EU case law by UK courts and tribunals (gov.uk).
However it seems the Court of Appeal must follow a Supreme Court decision applying EU Court decisions, even though the Supreme Court decision was made before the end of 2020 when it was still bound by EU law. See from page 46 of the consultation response, which says that the government has decided the Court of Appeal should not be able to depart from “retained domestic case law”, broadly pre-2021 UK court decisions on EU law. In other words, pre-2021 decisions by UK courts should be treated as precedents in the normal way, unless the UK law being interpreted has been amended since 2020. Accordingly the draft regulations say that the Court of Appeal “is bound by retained EU case law so far as there is post-transition case law which modifies or applies that retained EU case law and which is binding on [the Court of Appeal].” Post-transition case law is defined as “any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect on or after” 11pm on 31st December 2020. This definition seems to include pre-2021 Supreme Court decisions, since they “have effect on” 31st December 2020.
What test is applied in deciding whether to depart from EU Court decisions?
In deciding whether to follow EU Court of Justice decisions made before the end of 2020, both the Supreme Court and Court of Appeal must apply the same test as the Supreme Court would apply in deciding whether to depart from its own case law.
The Supreme Court treats its former decisions as “normally binding”, but departs from them “when it appears right to do so”. The House of Lords issued a Practice Statement (wikipedia.org) to that effect in 1996. The Supreme Court which took over the role of the House of Lords said this Statement is “part of the established jurisprudence relating to the conduct of appeals” and “has as much effect in [the Supreme] Court as it did before the Appellate Committee in the House of Lords”: UKSC Practice Direction 3 (pdf, supremecourt.uk), quoting the Supreme Court decision in Austin v Mayor and Burgesses of the London Borough of Southwark (bailii.org), 2010. That Austin case is one example of how the Supreme Court decides whether to depart from a past decision.
Accordingly, in deciding whether to depart from EU Court of Justice decisions made before the end of 2020, it seems that the Supreme Court or Court of Appeal will treat the EU case law as “normally binding” but will depart from it “when it appears right to do so”. If those courts do depart from the EU case law, other UK courts will doubtless follow the new decision, except of course for a Court of Appeal decision overruled by the Supreme Court. This means that EU case law as at the end of 2020 is not fossilised in stone forever.
Since the Framework Employment Directive sets only minimum standards, and UK courts are unlikely to disagree with an EU Court of Justice decision by interpreting an EU directive more restrictively than set out by the EU Court, it seems that any departure from EU case law in this context will inevitably reduce Equality Act rights.
EU Court decisions made after 2020
S.6(1)(2) EU (Withdrawal) Act 2018 says that in interpreting retained EU law (such as the Equality Act employment provisions), UK courts are not bound by an EU Court of Justice decision made after 11pm on 31st December 2020, but “may have regard to it” so far as it is relevant to a matter before the court.
Lord Neuberger, then president of the Supreme Court, argued that the legislation should be clearer on this. He said judges would hope and expect Parliament to spell out in a statute how to approach this sort of issue after Brexit. If the government doesn’t express clearly what the judges should do about EU Court decisions, then the judges will simply have to do their best. However to blame the judges for making the law when parliament has failed to do so would be unfair: UK judges need clarity after Brexit – Lord Neuberger (bbc.co.uk, 8/8/17). There is further discussion in paras 132-142 of the HL Constitution Committee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk).
A UK court is not allowed to refer any matter to the EU Court after the end of 2020 (s.6(1) EU (Withdrawal) Act 2018).
Marleasing principle: interpreting the Equality Act to conform with the directive
S.5(2) EU (Withdrawal Act) 2018 says that the principle of the supremacy of EU law (above) continues to apply after the end of 2020 as regards enactments passed or made before that time, unless they have been later modified. Also a principle laid down by EU and UK court decisions is that UK legislation implementing EU directives must be interpreted where possible to conform with EU law (the Marleasing principle). It seems that after the end of 2020 this principle will continue to apply under s.6 EU (Withdrawal Act) 2018, as ‘retained case law’, and under s.5. It seems that the UK courts should continue to interpret the Equality Act (so far as unamended) in accordance with the Framework Employment Directive, including EU Court decisions on it made before the end of 2020 unless the Supreme Court or Court of Appeal decide to depart from those decisions.
This will not apply to any post-2020 modification of the Equality Act, normally amendments by the UK Parliament, unless applying retained case law is consistent with the purpose of the modification (s.6(6) and s.5(3) EU (Withdrawal Act) 2018).
For example, unless Parliament amends the Equality Act, the EU Court decisions widening the meaning of ‘disability’ as discussed under EU law: ‘normal day-to-day activity’ is very wide in employment claims and any future EU Court decisions on this made before the end of 2020 should continue to apply in the UK, unless the Supreme Court or Court of Appeal decide otherwise. Similarly the various Employment Appeal Tribunal decisions interpreting the Equality Act so as to give effect to these EU Court decisions, such as Paterson on ‘normal day-to-day activities’ under the link above, will continue to bind employment tribunals as precedents, unless higher courts decide otherwise.
UK courts are not bound by EU Court decisions on the Framework Employment Directive made after the end of 2020, but may have regard to them if they consider appropriate: see above EU Court decisions made after 2020.
Departing from the wording of the Equality Act
It seems that British courts will even be allowed – indeed required – to depart from the express wording of an EU-derived British statute such as the Equality Act subject to the same limitations as now, in order to comply with the Framework Employment Directive and/or an EU Court decision issued before the end of 2020 (unless the Supreme Court or Court of Appeal decides to depart from the decision). That is part of what is required and allowed under the Marleasing principle (above).
Applying the Marleasing principle in this way is consistent with the Government’s Equality Analysis: EU (Withdrawal) Bill (pdf) on the 2018 Act. The Analysis says at para 28 that “the Bill preserves the requirement on our courts and tribunals to interpret domestic legislation, so far as possible, in light of relevant directives (this is often referred to as the duty of consistent interpretation).” Also para 35 of the Analysis cites as an example of this principle the case of Coleman. In that case the UK courts went against the wording of the DDA to make it consistent with EU law.
Some provisions of directives, including the Framework Employment Directive, have direct effect. They are sufficiently clear to create rights against public bodies such as public sector employers, if a member state has not properly implemented the directive. This is not normally important as regards disability discrimination; the UK courts will commonly give a wide interpretation to the Equality Act under the Marleasing principle (above), so that direct effect is not needed.
These ‘direct effect’ rights are brought into UK law at the end of 2020 by s.4 EU (Withdrawal) Act 2018. However s.4(2)(b) says that these rights arising under a directive must be “of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before [the end of 2020] (whether or not as an essential part of the decision in the case)”. “Of a kind” is not at all clear. Paragraph 92 of the Explanatory Notes to the 2018 Act says it applies “[w]here directly effective provisions of directives have been recognised by a court or tribunal before exit day” (now the “IP completion day”, ie the end of 2020). Perhaps the Government is intending to say that a court decision made before the end of 2020 must have recognised that the particular right is unimplemented in the UK and has direct effect. However the wording of s.4(2)(b) could be read as just saying that the directive provision must satisfy the judicially recognised criteria for having direct effect, such as clarity and unconditionality. (See also para 34 of the HL Constitution Cttee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk))
Before the end of 2020, where a directive has not been properly implemented in the UK but a person cannot rely on direct effect (perhaps because it is a private-sector employer), the person may be able to claim ‘Francovich damages’ against the UK government. However such claims are excluded after the end of 2020 by Schedule 1 para 4 of the EU (Withdrawal) Act 2018.
‘Direct effect’ only applies as against public sector bodies, so not as against private-sector employers. Even so, if an EU-compliant interpretation under Marleasing (above) is not possible, an option before the end of 2020 in a claim against a private-sector employer is using the principle in Kücükdeveci: see Framework Employment Directive>Beyond direct effect. However the Government considers such a claim would not be possible after the end of 2020 under s.6 EU (Withdrawal) Act 2018, presumably on the ground that it is blocked by Schedule 1 para 3 (para 22 of Equality Analysis: EU (Withdrawal) Bill (pdf)). This links in with the provisions on ‘retained principles’ and the EU Charter of Fundamental Rights …
“Retained general principles of EU law” – ie the principles as they stood immediately before the end of 2020 – also need to be followed by UK courts when interpreting retained EU law, so far as the law has not been modified after that end of 2020 (s.6(3)(7) EU (Withdrawal) Act 2018). It seems the UK Supreme Court and Court of Appeal (above Exception for the Supreme Court and Court of Appeal) are not allowed to depart from these principles. However presumably the normal s.6 rules (above) apply as regards case law about them. This is like the position on the principle of supremacy of EU law (above).
- fundamental rights,
- equality before the law, non-discrimination and equality between men and women.
However under Schedule 1 para 3 EU (Withdrawal) Act 2018 there is no right of action in domestic law after the end of 2020 based on a failure to comply with any of the general principles of EU law, and after the end of that period a court cannot disapply or quash any enactment or other rule of law because it is incompatible with any of the general principles of EU law.
EU Charter of Fundamental Rights
This is not being taken into UK law after the and of 2020 (s.5(4)(5) EU (Withdrawal) Act 2018). The Equality and Human Rights Commission is concerned that this will lead to a reduction in rights (equalityhumanrights.com), and has published a legal opinion (pdf) by leading counsel supporting this view.
For example in the Benkharbouche case (ukconstitutionallaw.org) the State Immunity Act 1978 was held to breach both the EU Charter of Fundamental Rights and the European Convention of Human rights in so far as it blocked employment claims by domestic staff of an embassy. The UK Supreme Court was able to disapply the 1978 Act as regards the discrimination claims and the claims under the working time regulation, because these derived from EU law and the EU Charter overrode UK law. Therefore the workers could enforce these rights in the UK courts. However the claims based on non-EU rights such as unfair dismissal could not be heard by the UK courts; under the Human Rights Act the Supreme Court could only declare the 1978 Act to be incompatible with the European Convention on Human Rights. The non-EU claims could not be heard unless and until Parliament amended the 1978 Act. It seems that after the end of 2020 even the EU-derived claims (including discrimination) would not have succeeded, unless and until Parliament amended the State Immunity Act 1978.
Aim is to maximise certainty
The purpose of applying pre-Brexit case law is to maximise certainty. Everyone will have been operating on the basis that the law means what the EU Court of Justice has already determined it means. Any other starting point would be to change the law (The Repeal Bill: White Paper (link to gov.uk)). Unless previous case law is applied, no one would know post-Brexit what the law is, how they should or shouldn’t act – until new cases had made their way up through the courts.
From 2021: ability to amend Equality Act without regard to EU law?
Any restrictions in EU agreement on future relationship?
The Withdrawal Agreement and Political Declaration (above) envisage that the UK and EU will negotiate an agreement on their future relationship, to take effect from the end of 2020. The EU is likely to want such an agreement, if reached, to contain ‘level playing field’ commitments preventing the UK from falling below certain levels of employment protection, for example not reducing current levels of protection on discrimination.
This is set out in Article 77 of the non-binding Political Declaration agreed between the UK and EU, which says for example “… the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of … social and employment standards…”.
The idea is that UK businesses should not have ‘unfair’ advantages over EU businesses, particularly because of how near to each other and economically interdependent the UK and EU are. It is a very contentious area in the UK, and the EU will have its own position on what it is willing to accept. Links on this:
- Level playing field commitments and another looming Brexit row (Prospect magazine), 9 Sept 2019;
- Ensuring a post-Brexit level playing field (pdf, e-ca.com), Chapter 6, from p. 97. May 2019, referring to Theresa May’s deal rather than the current one;
- Brexit negotiations – what is the ‘level playing field’? (instituteforgovernment.org.uk), 22 Oct 2018.
A possible compromise is that the UK would maintain minimum standards for the time being, but would be free to depart from them in which case the EU would be entitled to insist on certain tariffs or trade restrictions.
If level playing field commitments on workers’ rights are agreed, they will not necessarily have the same effect in British court decisions as EU law does now. How any commitments are enforced will depend on what agreement negotiated with the EU, and how that is implemented in Great Britain. For example, disputes on the restrictions agreed between the UK and EU might have to be primarily resolved between the UK government and the EU, with British courts possibly only taking them into account so far as British legislation is ambiguous. The ability of the UK courts to give effect to Britain’s obligations to the EU, as the courts do now, might be much reduced.
Limited constraints apart from EU law
Assuming it does not agree otherwise with the EU (see above Any restrictions in EU agreement on future relationship?), after the end of 2020 the UK Parliament will be entitled to amend (or perhaps repeal) the Equality Act without regard to EU law. However:
- The UK would remain legally obliged to comply with the UN Disability Convention (CRPD). However this is more ‘broad brush’ than the EU directive, and its enforcement mechanisms are weaker than EU law.
- The UK would also (even after Brexit) remain bound by the European Convention on Human Rights (ECHR). The Convention offers less clear protection than EU law, particularly as regards employment. If major changes to the Equality Act in future weaken discrimination protection, there may be cases brought to the Convention’s court in Strasbourg seeking to challenge these. The Government has said it has “no plans to withdraw from the ECHR” (para 18 Equality Analysis: EU (Withdrawal) Bill (pdf)), though the Conservatives may review this policy at some stage.
- The position is different in Northern Ireland where the Equality Act does not apply. It seems its disability discrimination law will have to comply with EU law under the Northern Ireland Protocol.
What is likely to happen to the Equality Act after Brexit?
It is likely in practice that the Equality Act will continue for the foreseeable future, even after Brexit.
What about amendments, so far as the UK does not agree restrictions with the EU? Major changes to the basic principles seem unlikely, at least in the short term. However since Labour lost the 2010 election, there have been employment law reforms particularly in areas not covered by EU law, for example increasing the qualifying period for unfair dismissal from one to two years. If equality law no longer has to meet EU minimum standards, the government may well consider some changes to restrict Equality Act rights.
The government has talked of maintaining the highest standards of workers’ rights. However a blog by Darren Newman Workers’ Rights and the EU (rangeofreasonableresponses.com), October 2019, comments that he would be more reassured about the government’s commitment to workers’ rights if instead of vague comments about maintaining high standards, they were able to say something more specific, such as the Minister for Women and Equalities, saying “I believe that there should be no cap on the amount of compensation that can be awarded in a discrimination case”.
One possible change would indeed be to limit the amount of compensation that can be awarded under the Equality Act. There is a statutory limit on compensation for unfair dismissal. Suggestions to do the same for discrimination claims have been blocked by the argument that it would breach EU law.
If a cap on Equality Act compensation is introduced, its effect would depend on the amount of the cap. A very small cap could mean the Act is deprived of any significant effect. More likely, a cap might be along the lines of that for unfair dismissal compensation awards. In broad terms, this is currently set at one year’s pay, subject to a maximum of £86,444 (for the year from April 2019). Most people have annual pay much lower than £86,444, so for most people the limit would be their own annual pay. This would mean a significant number of claimants no longer being compensated in full for the distress and financial loss they suffer due to unlawful discrimination. That applies particularly to claimants who have suffered more serious distress or long-term financial damage (eg long-term mental illness restricting their employment prospects), particularly lower-paid workers because the one year’s pay limit for them is lower. It would also deny full compensation to those in high paid roles such as the consultant physician who was deprived of her career in the Michalak case.
UK disability discrimination law is British in origin
Though not relevant legally, it is worth bearing in mind that UK disability discrimination law originated in Britain rather than Europe.
Before the Equality Act 2010, UK disability discrimination law was contained in the Disability Discrimination Act 1995 (DDA). The DDA was introduced by the then Conservative government and passed by the Westminster Parliament. William Hague was the Minister piloting it through the House of Commons. There was no European requirement at that time to pass the legislation.
An EU directive on disability discrimination came later, when in 2000 the EU adopted the Framework Employment Directive. This set minimum standards with which the disability discrimination law of member states had to comply. The directive was passed unanimously by the Council of Ministers, so the UK agreed to it. The directive required certain changes to the DDA, which took effect in 2004. Much of the development of EU disability discrimination law was directly influenced by Britain’s DDA, and by personnel who had worked in the UK on disability and then took that expertise to the EU (Evidence to House of Commons Women and Equalities Committee (parliament.uk), 14th Sept 2016, at Q2).
When Parliament consolidated British discrimination law by passing the Equality Act 2010, further changes were made to reflect EU law, partly as a result of the Coleman decision by the EU Court of Justice (though the change went further than that decision required). The Equality Act brought together in one place the DDA and other anti-discrimination legislation, such as that relating to sex and race, whilst also making various changes to the law.
The Equality Act would quite likely have been passed with or without the EU – though without the EU some of its provisions may have been different as the UK would not have been obliged to meet the requirements of the Framework Employment Directive. Also EU Court cases have been relevant in interpreting the Equality Act – see above From 2021: effect of EU law when interpreting Equality Act.
Technical note: why the Equality Act employment provisions are ‘retained EU law’
Why does it matter?
It matters that the Equality Act 2010 employment provisions are ‘retained EU law’ within the EU (Withdrawal) Act 2018, as amended by the 2020 Act, because:
- the s.6(3) provisions on applying pre-2021 case law are expressed to apply to retained EU law; and
- various powers given to the government to amend statutes, such as s.8, apply to retained EU law.
Technical reasoning why the Equality Act is ‘retained EU law’ so far as it implements EU law
The Equality Act seems to be ‘retained EU law’ so far as it implements EU law. This includes the Equality Act’s employment provisions (or at least most of them). The technical explanation for this is as follows.
S.6(7) EU (Withdrawal) Act 2018 defines as retained EU law: “anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4…”.
So looking at section 2, s.2(1) says that “EU-derived domestic legislation” as it has effect in domestic law immediately before IP completion day (11pm on 31st December 2020) continues to have effect in domestic law after that day. This can be read in conjunction with s.1B(7) which says that in general EU-derived domestic legislation, as it has effect in domestic law immediately before exit day (31st January 2020), continues to have effect in domestic law on and after exit day. So essentially EU-derived domestic legislation as it exists immediately before EU membership ceased on 31st January continues through the implementation period and also after that period finishes, unless and until amended.
The definition of “EU-derived domestic legislation” is in s.1B(7). This includes “any enactment so far as …. passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of [the European Communities Act 1972]”. One of those purposes in the 1972 Act is the purpose of “implementing any EU obligation of the United Kingdom…”. One such EU obligation is the UK’s obligation to have equality legislation complying with the Framework Employment Directive.
Is the Equality Act 2010 “passed, made or operating” for the purpose of implementing that Directive, within s.2(2)? The Explanatory Notes (para 77) on similar wording in the 2018 Act said this wording is designed to cover legislation which was either specifically passed for the purpose of implementing EU obligations, or (as regards the word “operating”) which has become part of the way in which the UK demonstrates compliance with EU requirements. Rather oddly the Explanatory Notes (para 91) to the Withdrawal Agreement Act 2020 (legislation. gov.uk) do not include the second of those options. However the word “operating” is still in s.1B(7), inserted by the 2020 Act. In any event part of the purpose of the Equality Act when passed in 2010 was surely to implement the relevant EU directives in the UK, so as to fall within the first option. One way or another, the Equality Act so far as it implements the Framework Employment Directive should fall within the wording.
It might be thought that the definition of retained EU law in s.6(7) EU (Withdrawal) Act 2018 does not include the Equality Act, because the Equality Act continues as part of domestic law by virtue of it being an Act of Parliament in its own right, rather than “by virtue of” s.2. However s.20(6) of the 2018 Act extends s.6(7) to include anything to which s.2(1) applies which continues to be domestic law on or after exit day, whether or not the legislation would have stayed in effect irrespective of s.2(1). See also para 185 of the Explanatory Notes to the 2018 Act, and footnote 6 on p.8 of them. Since the Equality Act 2010 continues to be domestic law after exit day, it can under s.20(6) be “retained EU law” even though it would have continued in force irrespective of s.2. (Note: the 2020 Act adds s.20(5A) to the 2018 Act. This does for s.1B much the same as s.20(6) does for s.2: see para 555 of the Explanatory Notes to the Withdrawal Agreement Bill. I think s.20(5A) probably isn’t needed for the argument above, but it’s there if required.)
That is the technical explanation, but also from a policy point of view including the Equality Act as ‘retained EU law’ is very much in line with the purpose of the EU (Withdrawal) Act to create certainty – to avoid past case law suddenly falling away at the end of 2020.
How far does the Equality Act implement EU law?
Equality Act employment provisions
The Equality Act therefore seems to be “retained EU law” so far as it implements EU law. This includes (at least most of) the Act’s employment provisions.
There may be employment provisions of the Equality Act which are not strictly required by the EU Framework directive or other EU law. However in practice the UK courts seem to see all its employment provisions as affected by EU law, for example when applying the definition of ‘disability’ in according with EU Court judgments. I have not seen the courts dissecting how far a particular employment claim (eg discrimination arising from disability within s.15?) is required by EU law, and applying a more limited definition of ‘disability’ (disregarding EU Court judgments) to aspects of the claim not required by EU law.
I will not go into where the boundaries of the employment provisions lie. Eg professional exams may fall within EU law.
Service providers etc
In a claim against a service provider, even at present the court will probably not apply the EU definition of disability. For example in the employment case of Banaszczyk v Booker the EAT made the point that the Equality Act definition of disability and the guidance go beyond the field of employment and occupation. However “in that field” (employment and occupation) it is established law that the definition of ‘disability’ must be applied in a way which gives effect to Framework Employment Directive.
After Brexit, claims against service providers and other types of non-employment claims under the Equality Act should not normally be ‘retained EU law’. This will mean the s.6(3) provisions on applying pre-Brexit case law will not apply.
One possible exception is services from ‘information society service providers’ (see eg Services: Connection with Britain>Information Society Services).
As well as the links above:
- Our Brexit Work – Equality and Human Rights Commission (equalityhumanrights.com);
- HL Constitution Cttee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk);
- Disability rights Risks of Brexit (tuc.org.uk);
- “Impact of Brexit on the Equality Agenda”, evidence to House of Commons Women and Equalities Committee (parliament.uk), 14th Sept 2016.