What are the consequences of Brexit for disability discrimination under the Equality Act? Essentially, the UK courts should continue to interpret the Equality Act in line with pre-Brexit decisions of the EU Court of Justice. However after Brexit 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.
- The UK currently remains a member of the EU until at least 31st January 2020, unless a withdrawal agreement takes effect in 2019. Accordingly at present UK legislation and court decisions must still comply with EU discrimination law.
- Under the European Union (Withdrawal) Act 2018, the UK is no longer be bound by UK law after ‘exit day’, which is now 31st January 2020. Under the proposed Withdrawal Agreement Bill 2019, implementing the revised October 2019 agreement with the EU, the UK would remain largely bound by EU law until the end of the implementation period, ie 31st December 2020 unless extended. Below Where we are – Withdrawal Agreement and election.
- From exit day, or the end of the implementation period, existing EU law would be made into British law. It can then be amended by the British parliament or government, subject to any agreement on future relationship with the EU (and to the Withdrawal Agreement, eg on Northern Ireland).
- Accordingly the Equality Act will continue even after Brexit. Under the Withdrawal Act 2018:
- the UK courts should continue to interpret its employment provisions to conform with the EU Framework Employment Directive where possible, except so far as the UK parliament or government amends the Act after exit day (or after the implementation period).
- This may involve the UK courts departing from the wording of the Equality Act.
- Most UK courts will still be bound by EU court decisions made before exit day (or before the end of the implementation period), but not those made after.
- More below: Effect of EU law when interpreting Equality Act.
- As regards possible amendments to the Equality Act after Brexit:
- a key point will be how far there are minimum levels of workers’ rights in any agreement on future relationship with the EU: Any restrictions in EU agreement on future relationship?
- unless otherwise agreed in negotiations with the EU, the UK will be entitled to amend the Equality Act without regard to EU law.
- The Equality Act is likely to continue for the foreseeable future.
- However some changes might be made, eg a cap on compensation. See below What is likely to happen to the Equality Act after Brexit?
- The Equality Act falls within controversial ‘Henry VIII’ powers given to government to amend laws without an Act of Parliament. However any changes to the Equality Act under these powers seem likely to be only technical.
Where we are – Withdrawal Agreement and election
At the time of writing the House of Commons has just approved an election in December 2019.
Date of Brexit
Another extension of EU membership has been agreed between the UK and EU. The UK now ceases to be a member of the EU on 31st January 2020 (or earlier if an agreement is ratified earlier) rather than 31st October 2019. See below When does EU membership end?
EU (Withdrawal) Act 2018
The main UK legislation currently in place is the European Union (Withdrawal) Act 2018 (legislation.gov.uk). This provides essentially that after “exit day” (now 31st January 2020), EU laws continue but as part of UK law which can be changed by Parliament. Parliament is then no longer constrained by EU law. In the interests of legal certainty, UK courts will normally continue to be bound by pre-Brexit decisions of the EU court, unless Parliament has amended the particular law.
Withdrawal Agreement with EU, October 2019
In October 2019 the UK agreed a revised Withdrawal Agreement and Political Declaration with the EU. The Withdrawal Agreement covers financial settlement, citizens rights and Northern Ireland, and provides for an implementation period until the end of 2020 (subject to possible extension) to seek to agree a long-term future relationship between the UK and the EU. The Political Declaration is a non-binding document on the future relationship. Links:
- House of Commons library briefing: The October 2019 EU UK Withdrawal Agreement (parliament.uk), and more of their briefings on Brexit (parliament.uk);
- New Withdrawal Agreement and Political Declaration (gov.uk) – full text of the agreement of October 2019.
Withdrawal Agreement Bill, October 2019
To bring the Withdrawal Agreement into UK law, the government introduced into Parliament the EU (Withdrawal Agreement) Bill (parliament.uk), amending the Withdrawal Act 2018. Parliament voted in favour of the Bill at second reading, but the government pulled the Bill from Parliament when the government’s timetable was not agreed.
Under the Withdrawal Agreement Bill, broadly what was to happen from “exit day” under the Withdrawal Act 2018 would happen from the “IP completion day”, ie from the end of the implementation period, namely 31st December 2020 unless extended:
- EU law would largely continue to apply in the UK until the end of the implementation period.
- After that, EU laws would continue but as part of UK law which can be changed by Parliament. Parliament would no longer be constrained by EU law (though Northern Ireland would remain bound by various EU laws including, it seems, the disability discrimination directive). Parliament might though be constrained by anything the UK agrees as to its future relationship with the EU.
- UK courts would normally continue to be bound by decisions of the EU court made before the IP completion day, unless Parliament had amended the particular UK law.
If the Conservatives win the election in December 2019, presumably a version of the Withdrawal Agreement Bill will be re-introduced into Parliament, with a view to the Bill being passed and the UK leaving the EU by 31st January 2020. Other election outcomes could give different results including renegotiating the agreement with the EU and a second referendum (Labour), cancelling Brexit, or perhaps no-deal.
Accordingly there is a lot of uncertainty at the moment. This page focuses on the European Union (Withdrawal) Act 2018, adding some notes on the effect of the Withdrawal Agreement Bill as introduced into Parliament (though Parliament would doubtless have amended it).
Equality Act continues even after Brexit
The Equality Act 2010 will continue as it is even after the UK ceases to be a member of the EU, 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. The 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 Great Repeal Bill: White Paper (gov.uk) of March 2017, and was implemented in the European Union (Withdrawal) Act 2018 (legislation.gov.uk) passed by Parliament in June 2018. 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. Indeed the EU directive on it was influenced by British law. See below UK disability discrimination law is British in origin.
After Brexit: effect of EU law when interpreting Equality Act
Under the EU (Withdrawal) Act 2018, after Brexit the Framework Employment Directive and pre-Brexit decisions of the EU Court of Justice will continue to have a significant effect on how British courts interpret and apply the Equality Act.
In summary, UK courts will generally remain obliged to follow decisions of the EU court made before exit day (currently likely to be 11pm on 31st January 2020), unless the UK Parliament or government has amended the particular UK law. The aim is to maximise certainty, so people know what the law is.
Note on the Withdrawal Agreement Bill 2019: If a similar Bill is passed after the election, broadly these rules on the UK courts following EU court decisions made prior to a particular date would apply not from “exit day” but from the end of the implementation period, called the “IP completion day”, 31st December 2020 unless extended. The UK would largely continue to be bound by EU law until the IP completion day. See above Where we are.
Basic principle: pre-exit EU case law will still apply
S.6(3) EU (Withdrawal) Act 2018 says that in interpreting ‘retained EU law’, pre-exit day decisions by the EU court, or by UK courts on EU law, must still be followed by UK courts, subject to an exception for the Supreme Court.
‘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’.
Exception for Supreme Court
Accordingly most UK courts will be bound by pre-Brexit decisions of the EU Court of Justice (unless the Equality Act has been amended after exit day). However the Supreme Court will not be absolutely bound by EU court decisions (s.6(4)(5)). The Supreme Court can depart from pre-exit EU court decisions where it would depart from its own decisions. The Supreme Court normally treats its former decisions as binding, but departs from them when it appears right to do so. Other UK courts would of course then follow the new decision of the Supreme Court. This means EU court decisions as at exit day are not fossilised in stone forever.
EU court decisions made after Brexit
What about a decision made by the EU court on or after exit day? The EU (Withdrawal) Act 2018 says that in interpreting retained EU law (such as the Equality Act employment provisions), UK courts are not bound by it after exit day, but “may have regard to it” so far as it is relevant to a matter before the court (s.6(1)(2)).
Lord Neuberger, then president of the Supreme Court, argued 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).
A UK court is not allowed to refer any matter to the EU court on or after exit day (s.6(1)). Again, if the Withdrawal Agreement Bill were passed, the cut-off would instead be the end of the implementation period (“IP completion day”), subject to the withdrawal agreement.
Marleasing principle: interpreting the Equality Act to conform with the directive
One important principle laid down in 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 exit day this principle will therefore continue to apply under s.6 EU (Withdrawal Act) 2018, as ‘retained case law’. It seems that the UK courts should continue to interpret the Equality Act in accordance with the Framework Employment Directive, including the EU court’s pre-exit decisions on it. This will not apply to any post-Brexit modification of the Equality Act, unless applying retained case law is consistent with the purpose of the modification (s.6(6), s.5(3)).
For example, the EU court decisions 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 exit day (or IP completion day), will continue to apply – unless and until the UK Supreme Court decides to depart from them. Also it seems that the many British court decisions interpreting the effect of the EU court decisions, such as the EAT decision in Paterson on ‘normal day-to-day activities’ under the link above, will also continue as precedents in the normal way.
UK courts will not be bound by EU court decisions on the Framework Employment Directive, made on or after exit day (or IP completion day), but could have regard to them if they consider appropriate.
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 exit day (or IP completion day).
That is part of what is required and allowed under the Marleasing principle, which will, it seems, be ‘retained case law’. It is also consistent with s.5(2) which says the principle of the supremacy of EU law continues to apply on or after exit day as regards enactments passed or made before exit day. This is subject of course to any post-exit amendment of the Equality Act.
This view is supported by the Government’s Equality Analysis: EU (Withdrawal) Bill (pdf). 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 departed from the wording of the UK statute to make it consistent with EU law.
Some provisions of directives, including the Framework Employment Directive, have direct effect, ie 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 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 on exit day by s.4 EU (Withdrawal) Act 2018. However s.4(2)(b) says such 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 exit day (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 says it applies “[w]here directly effective provisions of directives have been recognised by a court or tribunal before exit day”. Perhaps the Government is intending to say that a court pre-exit 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 the directive provision must satisfy the judicially recognised criteria for having direct effect, such as clarity and unconditionality. (See also para 34 of HL Constitution Cttee report: EU (Withdrawal) Bill, January 2018 (pdf))
At present, 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 might be able to claim ‘Francovich damages’ against the UK government. However such claims are excluded after exit day 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 pre-Brexit 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 Brexit under s.6 of the Act, 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 exit day (or IP completion day) – also need to be followed by UK courts when interpreting retained EU law (s.3(7)). It seems the UK Supreme Court is not allowed to depart from these principles. However presumably the intention is that the normal s.6 rules (above) apply as regards case law about them.
Examples of EU general principles given in the Explanatory Notes (para 59) or in the Equality Analysis: EU (Withdrawal) Bill (pdf) at para 21 include:
- fundamental rights,
- equality before the law, non-discrimination and equality between men and women.
However under Schedule 1 para 3 of the EU (Withdrawal) Act 2018 there is no right of action in domestic law after exit day based on a failure to comply with any of the general principles of EU law, and after exit day 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 exit day (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, and has published a legal opinion (pdf) by leading counsel supporting this view.
For example in the Benkharbouche case (link to 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 embassy domestic staff. 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 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 exit day EU-derived claims (including discrimination) would not succeed either, 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 has already determined it means. Any other starting point would be to change the law (The Great 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 have made their way up through the courts.
After Brexit: 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) of October 2019 envisage that the UK and EU will negotiate an agreement on their future relationship, to take effect from the end of the implementation period. The EU is likely to want such an agreement, if reached, to contain ‘level playing field’ provisions preventing the UK from falling below certain levels of employment protection (for example, perhaps not reducing current levels of protection). This is set out in Article 77 of the non-binding Political Declaration. The idea is that UK businesses should not have ‘unfair’ advantages over EU businesses. 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, epc.eu), Chapter 6, from p. 97. May 2019, refering to Theresa May’s deal rather than the current one.
- Brexit negotiations – what is the ‘level playing field’? (instituteforgovernment.org.uk) 22 Oct 2018.
If there are level playing field restrictions on workers’ rights, they will not necessarily have the same effect in British court decisions as EU law does now. It will depend on any agreement negotiated, and how it 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 October 2019 Withdrawal Agreement Bill would have inserted a Schedule 5A on “Protection for workers’ rights” into the EU (Withdrawal) Act 2018. However this would not prevent UK rights falling below EU levels. See further below Embedding equality rights through UK legislation?
Let us assume in the following that Great Britain does not agree to continue complying with EU disability discrimination law after ceasing to be an EU member or, if there is an implementation period, after the end of that period. What would be the position then?
Great Britain could amend legislation without regard to EU law
Assuming it does not agree otherwise with the EU, the UK Parliament will then 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 says 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.
- There have been proposals that the UK might, for example, give Parliament a greater say in whether to drop behind EU levels of protection: below Embedded equality rights?
- It is different in Northern Ireland.
See also below Henry VIII clauses as to powers of the UK government (without Parliament) to amend statutes.
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. The Government says in its Equality Analysis: EU (Withdrawal) Bill (pdf), para 8:
8. …The Government is committed to ensuring that the protections in the Equality Act 2010 will continue to apply once we have left the EU…
What about amendments? Major changes to the basic principles seem unlikely, at least in the short term. However since 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. When equality law no longer has to meet EU minimum standards, the government (most obviously a Conservative 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 something like “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 be to limit the amount of compensation that can be awarded under the Equality Act. At present 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 very much depend on the amount of the cap. A very small cap could mean the Act is deprived of any significant effect. More likely would be a cap 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 £83,682 (for the year from April 2018). Most people have annual pay much lower than £83,682, so the limit for most would be their annual pay from the particular employer. 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), including 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.
See also next heading on the possible issue of whether Henry VIII clauses in the Withdrawal Act 2018 might allow the government to make such a change without an Act of Parliament.
Embedding equality rights through UK legislation?
In March 2019 there were reports that the government had proposed mechanisms to give Parliament a vote on adopting future EU rules on workers’ rights, if a withdrawal agreement is approved: Workers rights: MPs promised vote on changes after Brexit (on bbc.co.uk), 6/3/19.
Another proposal has been that UK legislation might embed equality rights more strongly into British law. The Equality and Human Rights Commission, for example, has been reported as pushing ministers to enshrine a new ‘constitutional right to equality’ in British statute to ensure anti-discrimination laws are not weakened after Brexit: UK government watchdog pushes for new British ‘right to equality’ to stop Brexit leading to more discrimination (link to independent.co.uk), 15/10/17.
The effect of this would depend on the detail. However it seems unlikely that Parliament would legislate to seek to curtail what laws a future Parliament (and thus a government with a substantial parliamentary majority) could pass, even if this were constitutionally possible which is doubtful.
Schedule 4 of the Withdrawal Agreement Bill (October 2019) would have inserted a Schedule 5A on “Protection for workers’ rights” into the EU (Withdrawal) Act 2018. However this would not prevent UK rights falling below EU levels. Essentially, if after the implementation period the government wanted to propose a Bill reducing workers’ rights below the level of EU worker rights as at the end of the implementation period (eg disability discrimination rights under the Framework Employment Directive), the government would have to make a statement pointing this out to Parliament. The government would also consult worker and employer representatives. However the government could still propose the legislation reducing workers’ rights, and there was no restriction on the government passing regulations which reduce rights below EU levels. Also, if the EU introduces new worker rights after the implementation period, there was provision for the government to make periodic statements as to whether UK law meets EU standards and for Parliament to debate it. More: Withdrawal Agreement Bill: Protection for workers’ rights.
‘Henry VIII’ clauses – government powers to amend statutes
Normally an Act of Parliament is needed to change a statute. However due to the volume of changes required by Brexit, the European Union (Withdrawal) Act 2018 (legislation.gov.uk) includes extensive powers for the government to pass regulations. That includes powers, where the government considers appropriate:
- to remedy deficiencies in ‘retained EU law’ arising from the withdrawal of the UK from the EU (s.8);
- to make provision for implementing the withdrawal agreement if the Minister considers that the provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal (s.9).
- Also s.23 says that a Minister can by regulation make ‘such provision as the Minister considers appropriate in consequence’ of the Act.
The Act includes provisions on how far these powers are subject to Parliamentary scrutiny.
These powers and the limits were very contentious, and raise issues of the sovereignty of Parliament. Keir Starmer, the Shadow Brexit Secretary, set out concerns about their breadth and the lack of Parliamentary involvement in a House of Commons speech on 7th September 2017 https://goo.gl/9Lk8Hz, and the House of Lords Constitution Committee raised concerns in its HL Constitution Cttee report: EU (Withdrawal) Bill, January 2018 (pdf) from para 157. However, this web page deals only with the Equality Act:
Equality Act and Henry VIII clauses
It seems that as ‘retained EU law’ the Equality Act so far as it implements EU law on employment, and perhaps in some other areas, is covered by the s.8 power on remedying deficiencies. Regulation-making powers in the other sections of the Withdrawal Act might also possibly apply.
Regulations have now been passed to make some technical changes to the Equality Act and related regulations with effect from exit day:
- 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.
The government also included sample regulations making technical changes to employment rights in its former guidance Workplace rights if there’s no Brexit deal [withdrawn] (gov.uk).
What about further-reaching changes? It is difficult to see how any really significant amendments to the disability discrimination provisions of the Equality Act would be necessary as a result of Brexit. On the other hand the wide wording of the powers in the Withdrawal Act goes well beyond that, and one cannot be sure of their scope. For example, the Withdrawal Act uses a subjective test of what the government considers ‘appropriate’, and ‘deficiencies’ in s.8 is a broad term. S.23 could also be read very widely.
It has been suggested that the regulation-making powers in the Withdrawal Act might, for example allow the Government, without a further Act of Parliament, to cap compensation payments under the Equality Act (above Capping compensation) which could ‘gut’ its provisions – see Nick Dearden This is why ‘The Great Repeal Bill’ is such a big threat to British democracy (independent.co.uk), 7/9/17. Personally I doubt the courts would allow this particular amendment to be made by regulation, or indeed that the Government would try it. However there may be contentious amendments closer to the ‘borderline’ that the Government does seek to make to numerous pieces of legislation.
Note: The Government points out in its Equality Analysis: EU (Withdrawal) Bill (pdf), para 11, that in exercising regulation-making powers due regard will need to be given to equality issues under the public sector equality duty. However this does little to limit government powers provided the government considers the equality issues – it may decide other factors such as ‘cutting red tape’ override them.
When does EU membership end?
The UK currently remains a member of the European Union. Notification under Article 50 of the TEU (instituteforgovernment.org.uk) was given on 29th March 2017. Article 50 provides that unless otherwise agreed, the member state leaves the EU two years after the notification was given. The EU27 and UK have agreed extensions so that the UK remains a member until 31st January 2020 (European Council decision (europa.eu), or earlier if the Withdrawal Agreement is ratified in 2019. The UK could request a further extension, which the EU may or may not agree, or the UK could revoke its Article 50 notification. Otherwise, in the absence of an earlier withdrawal agreement, the UK will cease to be a member of the EU on 31st January 2020.
The reason why EU law has effect in the UK is because the British Parliament has 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 whenever it wants. However to repeal the 1972 Act before the UK ceased to be an EU member would presumably be a breach of both EU law and international law. The European Communities Act 1972 is therefore repealed with effect from ‘exit day’ (below).
(Note: The Withdrawal Agreement Bill would have largely kept the European Communities Act 1972 in effect during the implementation period as well).
‘Exit day’ – currently 31st January 2020
Section 1 of the European Union (Withdrawal) Act 2018 (legislation.gov.uk) repeals the European Communities Act 1972 with effect from ‘exit day’. Exit day was defined in s.20(1) EU (Withdrawal) Act as 11pm on 29th March 2019. This has been changed by regulation several times, most recently by SI 2019/1423 to 11pm on 31st January 2020.
The change of “exit day” was to reflect the agreed extension (above) of the UK’s EU membership to 31st January 2020. These regulations are under s.20(3)(4) EU (Withdrawal) Act 2018. Since This says exit day can be changed if the time when the EU treaties cease to apply to the UK under Article 50(3) changes. Originally under Schedule 17 para 14 these regulations had to be approved by each House of Parliament. However under s.2 EU (Withdrawal) Act 2019 approval is no longer required but the regulations are subject to annulment by either House of Parliament.
The ‘exit day’ could be changed again if a further extension of membership were agreed with the EU27.
Accordingly at present the UK must still comply with EU discrimination law
Under the European Communities Act 1972, British courts and other bodies currently remain bound by EU legislation, including the Framework Employment Directive on discrimination, and by decisions of the EU Court of Justice. Accordingly, for the time being –
- the Equality Act must continue to meet the minimum standards laid out in the directive, and
- the courts must continue to interpret the Equality Act in the light of the directive and EU court decisions, as discussed on this website.
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, 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 must 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. The point has been made that a great deal 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, 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. 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 some of its provisions may have been different without the EU 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 Effect of EU directives and court decisions 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 because:
- the s.6(3) provisions on applying pre-Brexit case law are expressed to apply to retained EU law; and
- the s.8 Henry VIII powers for the government to amend statutes 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 defines as retained EU law: “anything which, on or after exit 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’ continues in effect after exit day. The definition of ‘EU-derived domestic legislation’ is in s.2(2) and 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…’. This will include the UK’s obligation to pass 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 at para 77 say 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. The Equality Act so far as it implements the Framework Employment Directive should easily fall within one or the other of these.
It might be thought that the definition of retained EU law in s.6(7) 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) 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, 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.
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 on exit day.
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 which are not strictly required by the EU Framework directive or other EU law. However in practice the courts seem to see all 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’ (without 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 (bailii.org) 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).
There are important current links on Where we are above. Also
- Our Brexit Work – Equality and Human Rights Commission;
- HL Constitution Cttee report: EU (Withdrawal) Bill, January 2018 (pdf):
- Disability rights Risks of Brexit (link to tuc.org.uk);
- ‘Impact of Brexit on the Equality Agenda’, evidence to House of Commons Women and Equalities Committee, 14th Sept 2016.