From 1st January 2021, so far as the Equality Act is not amended by Parliament, UK courts should normally (though not always) continue to interpret the Act in line with the relevant EU directive and EU Court decisions made before the end of 2020. This is to preserve legal certainty after Brexit.
- After the end of 2020, the UK Parliament is no longer constrained by EU law in making changes to the Equality Act.
- However except so far as Parliament amends the Equality Act after 2020, in the interests of legal certainty the UK courts after 2020 must generally still follow the Framework Employment Directive and decisions of the EU Court of Justice made before the end of 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 EU Court decisions made before the end of 2020. However it seems even they will “normally” follow those decisions. In March 2021 we had the first court decision applying this test.
- It seems UK courts are bound to follow pre-2021 decisions of UK courts on EU law to the same extent as now, except so far as the UK statute has been amended after 2020. Below Pre-2021 EU case law will normally still apply.
- UK courts are not bound by an EU Court decision made after the end of 2020, but “may have regard to it”. Below EU Court decisions made after 2020.
- The aim is to maximise certainty, so people know what the law is.
- This page is my interpretation of the position. It should be treated with particular caution as we do not yet have court decisions on the issues it discusses.
There is a technical note below on the meaning of “exit day” (31st January 2020) and “IP completion day” (11pm on 31st December 2020).
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 to any modification of an enactment after the end of 2020, unless applying the supremacy principle is consistent with the purpose of the modification (s.5(3)). So the principle does not prevent the UK Parliament passing or amending laws after 2020.
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 where possible, except so far as the Equality Act is amended after 2020. Any amendment will normally be by the UK Parliament. This requirement to interpret UK legislation to conform with EU law is called the Marleasing principle (below).
Can Supreme Court and Court of Appeal depart from supremacy 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 at 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 laid down in s.5. However after 2020 the Supreme Court or Court of Appeal may decide to interpret 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 the EU Court). In any event, an amendment of 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).
In the light of this supremacy principle, I suggest that even the Supreme Court and Court of Appeal must interpret the Equality Act (so far as unamended after 2020) in accordance with EU law where possible, under the Marleasing principle (below), even if based on their own interpretation of the directive.
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 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?); and
- this requirement to follow pre-2021 EU or UK court decisions does not apply so far as the UK law has been modified (eg amended by the UK Parliament) after the end of 2020 – unless following the court decision is consistent with the intention of the modification: 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 – including employment tribunals and the employment appeal tribunal – remain bound after 2020 by decisions of the EU Court of Justice made before the end of 2020, except so far as the Equality Act is amended after 2020. And it seems that even the Court of Appeal and Supreme Court will “normally follow” those decisions.
Also it seems that after 2020 the UK courts are bound to follow pre-2021 decisions of UK courts on EU law in relation to the Equality Act to the same extent as before, except so far as the Equality Act is amended after the end of 2020. This is under S.6(3) EU (Withdrawal) Act 2018. There is no exception under s.6(4) for retained domestic case law which would normally bind the relevant court. Furthermore that conclusion is consistent with regulations saying the Court of Appeal must follow pre-2021 Supreme Court decisions (below).
Exception for the Supreme Court and Court of Appeal
After 2020 the Supreme Court is 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).
After 2020 the Court of Appeal and some equivalent courts are also 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 The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 SI 2020/1525, 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, except so far as the UK law being interpreted has been amended since 2020. Accordingly regulation 4(2) says 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 in regulation 2 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, because 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.
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”. The test is discussed further in the second half of Domestic courts’ new powers to depart from pre-Brexit case law (eurelationslaw.com), 15 March 2021. 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.
The first case in which a court has considered whether to depart from EU case law under these rules is:
TuneIn v Warner Music (bailii.org), Court of Appeal, 2021
This was a copyright case. From paragraph 73 the Court of Appeal considered whether to depart from EU court judgments and decided not to, giving six reasons. It said both the House of Lords and the Supreme Court have consistently stated that the power to depart from its own previous judgments is to be exercised with great caution. The House of Lords had said in 2006, and the Supreme Court had quoted this as still applicable in 2020:
“Over the past 40 years the House has exercised its power to depart from its own precedent rarely and sparingly. It has never been thought enough to justify doing so that a later generation of Law Lords would have resolved an issue or formulated a principle differently from their predecessors.”
The defendant accepted that if the court did depart from EU case law, it would only be with effect from 1st January 2021, so it would not affect infringements before that date: see below No departure from pre-2021 EU court decision if claim arose before 2021?
Might the Supreme Court or Court of Appeal take into account the non-regression clause in the UK-EU Trade Agreement in deciding whether to depart from EU Court case law? As discussed at that link, it seems unlikely that a decision to be made by the court would be significant enough to impact trade or investment (a requirement for the clause to apply), and anyway the court might be reluctant to consider whether it has such an impact.
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.
No departure from pre-2021 EU court decision if claim arose before 2021?
That is probably the position, but we await a court decision. If the discrimination happened before 1st January 2021, then most likely even the Supreme Court and Court of Appeal are still bound by pre-2021 EU court decisions.
The legal reason for this is s.16 Interpretation Act 1978 which says a repeal does not affect rights and obligations previously accrued unless the contrary attention appears, and s.6(4) EU (Withdrawal Act) 2018 which (as an exception to s.6(3)) seems to be talking of “retained EU law” which is defined as laws continuing to have effect after 31st December 2020 by virtue of particular provisions. See discussion at Departing from retained EU case law: new Court of Appeal judgment (eurelationslaw.com), about the TuneIn decision.
In TuneIn v Warner Music (above), 2021, the defendant conceded that any departure from EU court decisions would not affect infringements up to 31st December 2020, so the Court of Appeal did not have to decide the issue. In Lipton v BA City Flyer (bailii.org), 2021, from para 63, the Court of Appeal seems to have assumed that departure from EU court decisions would be allowed provided the UK court decision was after 31st December 2020, but did not consider s.16 Interpretation Act. The Lipton case is discussed at Route map for retained EU law: new Court of Appeal Judgment (eurelationslaw.com).
It is probably different for EU court decisions after 2020 – see next heading.
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 in 2017 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. Similarly Lady Hale, newly appointed as president of the Supreme Court, said she hoped “that the European Union Withdrawal Act will tell us what we should be doing … saying how much we should be taking into account [judgments from the ECJ]”: UK’s new supreme court chief calls for clarity on ECJ after Brexit (theguardian.com), 5/10/17. There is further discussion in paras 132-142 of the HL Constitution Committee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk).
I think that even if the discrimination happened before 1st January 2021, the UK court is not bound by a post-2020 EU court decision (but may have regard to it). However we await a UK court decision on this. Unlike s.6(3)(4) (above No departure from pre-2021 EU court decision if claim arose before 2021?), s.6(1) EU (Withdrawal Act) 2018 saying that post-2020 EU court decisions are not binding is not expressed to be limited to “retained EU law”, which is arguably only post-2020, by definition. Also the other part of s.6(1) – saying a UK court cannot refer a matter to the EU court after 31st December 2020 – seems to apply even where the claim arose before that date. That may well be sufficient contrary intention under s.16 Interpretation Act 1978 (which says a repeal does not affect accrued rights unless the contrary intention appears). In any event, if the claim had been decided by a UK court before 1st January 2021, it would not have taken account of the (yet to be issued) post-2020 EU court decision.
In general a UK court is not allowed to refer any matter to the EU Court after the end of 2020 (s.6(1)(b) EU (Withdrawal) Act 2018). However there are exceptions to this: Preliminary references after transition: out with the old, in with the new (eurelationslaw.com), June 2020.
Marleasing principle: interpreting the Equality Act to conform with the directive
Under s.5(2) EU (Withdrawal Act) 2018, the principle of the supremacy of EU law (above) continues to apply after the end of 2020 as regards enactments passed before then, except so far as they have been modified after 2020. Also EU and UK court decisions have laid down the principle that UK legislation implementing EU directives must be interpreted where possible to conform with EU law (the Marleasing principle). It seems this principle will continue to apply after the end of 2020 under s.6 EU (Withdrawal Act) 2018 as ‘retained case law’, and under the supremacy principle in s.5. Therefore it seems UK courts should continue to interpret the Equality Act (so far as unamended) in accordance with the Framework Employment Directive – including in accordance with EU Court decisions made before the end of 2020 unless the Supreme Court or Court of Appeal decide to depart from them.
This will not apply so far as the UK Parliament amends the Equality Act after 2020, unless applying the principle of supremacy or EU case law is consistent with the purpose of the amendment (s.6(6) and s.5(3) EU (Withdrawal Act) 2018).
For example, unless Parliament amends the Equality Act, UK courts should continue to apply the EU Court decisions which have widened the meaning of ‘disability’ as discussed in EU law: ‘normal day-to-day activity’ is very wide in employment claims, unless the Supreme Court or Court of Appeal decide to depart from those decisions. 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’ discussed in the link above, will continue to bind employment tribunals as precedents (as ‘retained case law’ under s. 6), unless higher courts decide otherwise.
I suggest that even the Supreme Court and Court of Appeal must apply the Marleasing principle so long as the Equality Act is unamended – even if based on a different interpretation of the directive where they decide to depart from an EU Court decision. See above Can Supreme Court and Court of Appeal depart from supremacy principle?
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 after 2020, British courts are still 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, or the British statute has been amended after 2020). This 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).” Para 35 of the Analysis gives as an example of this principle the case of Coleman where the UK courts went against the wording of the Disability Discrimination Act (DDA) to make it consistent with EU law.
Some provisions of directives, including the Framework Employment Directive, have direct effect if a member state has not properly implemented the directive. If the directive rights are sufficiently clear, precise and unconditional, an individual can rely on them against public bodies such as public sector employers. Direct effect is not normally important as regards disability discrimination; the UK courts commonly give a wide interpretation to the Equality Act under the Marleasing principle (above), so that direct effect is not needed.
‘Direct effect’ rights under EU directives are brought into UK law at the end of 2020 by s.4 EU (Withdrawal) Act 2018. However these rights must be either:
- “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)”, s.4(2)(b) EU (Withdrawal) Act 2018, or
- “of a kind recognised by a court or tribunal in the United Kingdom in a case decided on or after [the end of 2020] but begun before [the end of 2020] (whether or not as an essential part of the decision in the case)”, para 38 of Schedule 8 EU (Withdrawal) Act 2018.
So a decision of the EU court recognising the right must be before the end of 2020, but a decision of a UK court or tribunal recognising the right can be after that time if the case was begun before the end of 2020.
What “of a kind” means is not at all clear. Paragraph 98 of the Explanatory Notes to the 2018 Act says that “of a kind” is intended to ensure that rights are retained if they are of a similar kind to those so recognised, and “rights arising under a particular directive that have been recognised by a court before [the end of 2020] as having direct effect, could be relied upon by other individuals who are not parties to that case”. This seems to be saying that the court decision must have held that the particular directive provision or perhaps a similar one has direct effect. I suspect the courts will interpret the Act along the lines of the Explanatory Notes, partly because it makes better sense of Sch 8 para 38. The EAT in Steer v Stormsure Ltd (bailii.org), 2020, at para 11 thought that interpretation “arguable”. However as the House of Lords Constitutional Committee pointed out, the position is not clear:
“34. Clause 4 also provides that directives will not be brought into domestic law if they are “not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”. It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect, or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered. The language of clause 4 supports the latter interpretation, but the explanatory notes appear to endorse the former.”
HL Constitution Committee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk)
Before the end of 2020, where a directive had not been properly implemented in the UK but a person could not rely on direct effect (eg if it is a private-sector employer), the person might be able to claim ‘Francovich damages’ against the UK government. However after the end of 2020 such claims are excluded by Schedule 1 para 4 of the EU (Withdrawal) Act 2018.
‘Direct effect’ only applies against public sector bodies, so not against private-sector employers. Even so, if an EU-compliant interpretation under Marleasing (above) is not possible, before the end of 2020 it might be possible to claim under EU law against a private-sector employer using the principle in Kücükdeveci: see Framework Employment Directive>Beyond direct effect. However the Government considers such a claim is not 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 after 2020 when interpreting retained EU law, so far as the UK 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 are not allowed to depart from these principles, since the exception for the Supreme Court and Court of Appeal (above) only applies to case law. However presumably the normal s.6 rules (above) apply as regards case law on these general principles of EU law. 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 Sch 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 2020 a UK 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. But an exception from Sch 1 para 3(2) – on disapplying or quashing – is Sch 8 para 39(6). One blog says it is very hard to see how this exception does not significantly reduce or un-do the impact of the “rule” in Sch 1 para 3: Retained EU law: a guide for the perplexed (eurelationslaw.com), December 2020.
Discussion of general principles of EU law after Brexit in the light of two 2021 Court of Appeal decisions: Are General Principles of EU Law Part of Domestic Law – Lipton and Adferiad, which is correct? (eurelationslaw.com), December 2021.
EU Charter of Fundamental Rights
This is not taken into UK law after the end of 2020 (s.5(4)(5) EU (Withdrawal) Act 2018). The Equality and Human Rights Commission was concerned this will lead to a reduction in rights (archive of equalityhumanrights.com), and published a legal opinion (pdf) by leading counsel supporting this view.
For example in the Benkharbouche case (ukconstitutionallaw.org), 2017, the State Immunity Act 1978 was held to breach both the EU Charter of Fundamental Rights and the European Convention on 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. (More on Benkharbouche: Enforcement of European Convention and HRA 1998.)
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 (Repeal Bill: White Paper (gov.uk), 2017). 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.
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(2) and (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 before the end of 2020 the court would probably not apply the EU definition of disability. For example in the employment case of Banaszczyk v Booker, 2016, the EAT made the point that the Equality Act definition of disability and the statutory guidance on it 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 the end of 2020, claims against service providers and other types of non-employment claims under the Equality Act should not normally be ‘retained EU law’. This means that the s.6(3) provisions on applying pre-Brexit case law do not apply.
One possible exception is services from ‘information society service providers’ (see eg Services: Connection with Britain>Information Society Services).
Technical note on ‘IP completion day’ and ‘exit day”
Under the EU (Withdrawal Act) 2018:
- “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)).
- “exit day” was 11pm on 31st January 2020, when the UK ceased to be a member of the EU. “Exit day is defined by s.20(1) EU (Withdrawal) Act 2018, most recently amended by SI 2019/1423 after several agreed extensions of membership.
For more see Brexit: UK-EU agreements, and UK legislation.
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.