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Brexit: Effect of EU law when interpreting Equality Act, from 2024

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Last updated 8th February, 2024 (part update 14th July, 2024).

From 1st January 2024, the Equality Act (EqA) has been amended to expressly include some EU case law, including on the meaning of disability. Also legislation still says in 2024 that to a large extent British courts should continue to follow EU case law (some changes weakening that are not yet in force). However, there are significant areas of uncertainty.

Summary

Supremacy of EU law ended on 31st December, 2023

After Brexit, UK legislation previously said that the principle of the supremacy of EU law continued to apply, after 2020, as regards enactments that were passed before the end of 2020: s.5(2) EU (Withdrawal Act) 2018. Generally, this did not apply so far as the Westminster Parliament amended those laws after 2020. Post-2020 amendments (and indeed new laws) did not have to comply with EU law. More: Archive: Effect of EU law when interpreting Equality, 2021 to 2023>Supremacy of EU law until UK modifies its laws.

However, from 1st January 2024, the principle of the supremacy of EU law is no longer part of UK domestic law, subject to certain exceptions. Accordingly this principle no longer applies to the Equality Act 2010 (EqA). The abolition of this principle is by virtue of s.3 Retained EU Law (Revocation and Reform) Act 2023 (REUL Act). (S.3, and s.4 below, were brought into effect from that date by reg 3, SI 2023/1363.)

Also “general principles of EU law” are no longer part of UK law, from 1st January 2024: s.4 REUL Act 2023. On how that may affect the EqA, see Proportionality below. (Also s.2 REUL Act repeals EU rights, obligations and remedies etc previously preserved by s.4 EU (Withdrawal) Act 2018.)

How far these changes matter to disability discrimination law is unclear to some extent, and is discussed below. A key question is how far British courts can and will continue to reach decisions not permitted by the wording of the EqA, based on EU law, where the discrimination happened after the end of 2023. There are two main ways the British courts can or may still be able to do this:

  • Regulations have specifically amended the EqA to preserve EU rules giving a wider meaning to “disability” in employment claims, and also widening who can claim indirect discrimination. British courts should clearly follow this new EqA wording: below EqA regulations preserving parts of EU law.
  • UK statutory provisions still say that lower courts must follow pre-2021 EU case law, and provide for the test to be applied by higher courts in deciding whether to depart from it: below Pre-2021 EU case law will “normally” still apply. Even so:
    • The position is unclear where the EqA has not been expressly amended to include instances where British courts have previously reinterpreted the EqA under the Marleasing principle, based on EU law: below EU law going beyond EqA wording but not preserved by regulations.
    • There is also some uncertainty on how far British courts should continue to apply the EU test in deciding what is “proportionate”, an important issue in very many EqA cases. This is partly because the REUL Act 2023 has abolished the EU general principle of proportionality in the UK, from the start of 2024. Below Proportionality.

If discrimination happened before the end of 2023

Those changes – abolition of supremacy of EU law (s.3), and abolition of EU general principles (s.4) – seem to apply only to discrimination which happens on or after 1st January 2024. S.22(5) REUL Act says ss.2 and 4 do not apply in relation to anything occurring before the end of 2023. (See too Retained EU law bill becomes law: what’s the practical impact on employers? (lewissilkin.com).)

A possible complicating factor is the coming into effect on 1st October 2024 of s.6 Retained EU Law Act, relaxing the tests for whether higher courts in Britain can depart from pre-2021 EU case law, and setting out new referral mechanisms (as discussed at Retained EU Law Act 2023>Easier for UK higher courts to override EU cases, and referral system). It looks like the amended tests will apply to court decisions made on or after 1st October 2024, even though the discrimination happened and the claim was made before then. This is partly because of Lipton v BA Cityflier (though not directly on the point), and partly because regulation SI 714/2024, which brings s.6 into effect, includes a saving provision (reg 3) setting out exceptions from that 1st October date. For example, the new s.6 does not apply if permission to appeal was granted before 1st October 2024. (The role of the courts regarding assimilated law from October 2024 (eurelationslaw.com), June 2024). S.6 is not one of the provisions that s.22(5) REUL Act, above, disapplies for anything occurring before the end of 2023.

So it seems likely that for higher court decisions made from 1st October 2024 (subject to reg 3) the more relaxed tests for whether higher courts can depart from pre-2021 EU case law will apply even if the claim arose before the end of 2023, when the supremacy of (pre-2021) EU law still applied.

For discrimination which happened before the end of 2023, see Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023.

EqA regulations preserve parts of EU law

The Equality Act 2010 (Amendment) Regulations 2023 (legislation.gov.uk), SI 2023/1425, specifically preserve parts of EU law from 1st January 2024. These regulations were passed because, with the abolition of the supremacy of EU law (above), EU law does not necessarily continue to override provisions of the EqA. The regulations say they are made under s.12(8) REUL Act, which authorises regulations to “reproduce” the effect of anything that was retained EU law before 2024 under certain provisions. Furthermore, s.13(3) REUL Act (read with s.13(11)) allows this power to be used to resolve ambiguity, remove doubts or anomalies, or facilitate improvement in the clarity or accessibility of the law (Explanatory Memorandum para 6.3-6.6).

As regards disability discrimination, the main effect of these regulations is that they preserve the wider meaning of “disability” in employment claims, and expressly widen who can claim indirect discrimination:

EU definition of disability

The EU court’s definition of disability focuses on whether the impairment might limit the person’s ability to participate fully and effectively in professional life. Before 2024, the EqA wording, on the other hand, required a substantial effect on ability to carry out “normal day-to-day activities”. To comply with EU law, British courts widened the meaning of “normal day-to-day activities”, for example to include an exam for promotion, or applying for a job.

To preserve this wider definition of disability in relation to employment claims, the regulations have now amended the EqA to expressly say that a person’s ability to carry out “normal day-to-day activities” includes more generally their ability to participate fully and effectively in working life on an equal basis with other workers: regulation 6, inserting a new EqA Sch1 para 5A. See Disability: ‘Normal day-to-day activities>Extended meaning.

The intention seems to be that the courts continue to apply pre-2021 EU case law here: below Status of pre-2021 case law.

Indirect discrimination by association

A new s.19A EqA (inserted by regulation 3) now expressly allows a person to claim indirect discrimination even though they do not have the protected characteristic, if the person is put at the same disadvantage as people who have the protected characteristic. This is to implement the EU court decision in CHEZ.

The new s.19A (and the potential to claim even if the discrimination was before 2024) are discussed at Indirect discrimination>S.19A: Indirect discrimination “by association”.

For example, potentially s.19A might permit a claim by someone who does not themself meet the EqA definition of disability (despite perhaps having a stammer, or other impairment) but who is put at substantively the same disadvantage as people who do have a disability within the EqA.

Status of pre-2021 case law

These regulations SI 2023/1425 modify the EqA. When applying the amended EqA wording, how far are British courts still bound by pre-2021 decisions of the EU Court of Justice, or of UK courts on the effect of EU law?

It should not really matter whether courts are bound by EU court decisions related to these regulations, as the courts need to apply the new EqA wording which broadly gives effect to the EU court decisions.

It seems that Employment Appeal Tribunal (EAT) case law – of which there is much on the wider meaning of disability – still binds employment tribunals under s.6 EU (Withdrawal Act, despite the fact the EqA has been modified. This is because the case law is consistent with the intention of the modification. However, post-Brexit rules will make it easier for an employment tribunal to refer to the Court of Appeal the issue of whether it should continue to apply pre-2021 EAT decisions. We may therefore relatively soon get a Court of Appeal or even Supreme Court decision which considers whether or not to take a different approach in some ways to existing EAT case law. See Disability: ‘Normal day-to-day activities’>Technical note: Should pre-2021 case law on wider definition of disability continue to apply?

EU law going beyond EqA wording but not preserved by regulations

The wider definition of disability, and indirect discrimination claims by those who do not have the protected characteristic, are two instances where the courts interpreted the EqA in a way not permitted but its actual wording (or at least, in the case of indirect discrimination, where the courts would have interpreted it in that way, according to the government). The regulations (above) have now amended the EqA to cover these instances.

However, what of other instances where the courts have gone beyond the wording of the EqA, based on EU law, but which are not included in the regulations? It is unclear whether these reinterpretations of the EqA will continue to apply from 1st January 2024. Examples relevant to disability discrimination include:

Marleasing principle

The decisions in those examples were based on the Marleasing principle: see EU Framework Employment Directive>Marleasing principle: interpreting Equality Act to comply with Directive. This principle allowed UK courts to reinterpret – ie effectively to go against the wording of, or rewrite – UK legislation such as the EqA, in order to comply with EU law, albeit subject to certain limits. The Marleasing principle very likely continued to apply up to the end of 2023: see Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Marleasing principle: interpreting the Equality Act to conform with the directive.

What is the position from the start of 2024? Can British courts still go against the wording of the EqA, based on EU law, if the discrimination happened later than the end of 2023? This is unclear, and will need to be resolved by the higher courts, ie the Court of Appeal or ultimately Supreme Court. Briefly:

  • On the one hand, the REUL Act has abolished the supremacy of EU law (above), from the start of 2024. Also the Explanatory Notes to the REUL Act seem to say that this abolishes the Marleasing principle.
  • On the other hand, s.6 EU (Withdrawal) Act 2018 still requires the lower courts (including the Employment Appeal Tribunal), and to a significant extent the higher courts, to follow pre-2021 EU case law: below Pre-2021 EU case law will “normally” still apply. Some pre-2021 case law reinterprets/rewrites the EqA under the Marleasing principle.
  • I think that if British courts can still override EqA wording based on EU law, it will probably be not because of the Marleasing principle as such, but because they are following the precedent of previous cases (EU court or British appeal court) under s.6 EU (Withdrawal) Act 2018. So it may be particularly difficult to argue for extended protection from victimisation (the third example above), as there is no direct appeal court authority.
    (For more technical detail, see below More detail on Marleasing principle and the REUL Act.)

There may be non-EU law arguments to be considered as well, along the lines of when courts can remedy drafting errors in legislation.

More detail on Marleasing principle and the REUL Act

S.3 REUL Act 2023 largely abolished the supremacy of EU law (above) from 1st January, 2024. Also from that date, s.2 REUL Act repeals EU rights, obligations and remedies etc previously preserved by s.4 EU (Withdrawal) Act 2018.

Para 92 of the Explanatory Notes (legislation.gov.uk) for the REUL Act 2023 says that this abolition of the supremacy of EU law “has the effect of removing the principle of consistent interpretation in relation to all domestic legislation, and the conflict rule requiring domestic legislation to give way to RDEUL [below] where a consistent interpretation is not possible”. The principle/duty of consistent interpretation is another name for the Marleasing principle.

Despite directives not being RDEUL, below, it seems likely that the government sees the REUL Act as repealing the Marleasing principle, under which UK legislation implementing an EU directive must be interpreted where possible to conform with the directive. However it will be for the courts to interpret the effect of the REUL Act.

A route under which the Marleasing principle may potentially still apply in effect – including after 1st January 2024 – is through UK courts following previous EU and UK court decisions under s.6 EU (Withdrawal) Act 2018: below Pre-2021 EU case law will “normally” still apply. Even after amendments to this are brought into force – see Retained EU Law Act 2023>Easier for UK higher courts to override EU cases from 2023? – it seems that s.6 of the 2018 Act will still require courts to follow pre-2021 court decisions related to EU law, as “assimilated case law”, unless higher appeal courts have decided they should no longer do so.

Technical bases for the Marleasing principle in the three years to the end of 2023, including s.6 and the supremacy of EU law among other things, are discussed at Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Technical note: Why Marleasing principle continues. S.4 of the 2018 Act mentioned there is now repealed.

(RDEUL means “retained direct EU legislation” as defined by s.20 with s.3(2) EU (Withdrawal) Act 2018. The most obvious examples are EU regulations applying directly in the UK. Since directives are within s.4 rather than s.3 of the 2018 Act, RDEUL does not include the Framework Employment Directive which is the main EU legislation on disability affecting the interpretation of the Equality Act.)

Proportionality

A very important – because it is widely applicable – issue which may now be uncertain following the REUL Act is what is “proportionate” under the EqA. Proportionality lies at the heart of the objective justification defence and indirect discrimination in the EqA. British court decisions on what is “proportionate” under this EqA defence are very much based on EU case law.

Proportionality as general principle of EU law

The uncertainty, from 1st January 2024, is firstly because from that date s.4 REUL Act has abolished the EU general principle of “proportionality” in the UK, along with other “general principles of EU law”.

It has been suggested (Webinar, from 32 minutes in) that s.4 creates uncertainty as to what approach UK courts should take under the EqA proportionality defence.

It might be argued that UK courts’ reliance on EU cases here can be divorced from the EU “general principle” of proportionality as such: eg the issue under the EqA is not whether measures of the EU or a member state are proportionate (TEU Article 5(4)). However, even if British higher courts decide to pretty much follow the same approach before – as I suspect they will (My view below) – there may well be delays and extra expense before the uncertainty is resolved.

Proportionality: Decision on whether to follow EU case law generally

Apart from the s.4 abolition of EU general principles, there is the question of whether UK courts considering the EqA justification defence will continue to follow the EU cases on proportionality: under s.6 of the 2018 Act as amended by the REUL Act 2023. S.6 is currently as discussed below in Pre-2021 EU case law will “normally” still apply, but is more likely to produce uncertainty when new rules take effect: Retained EU Law Act 2023>Effect of REUL Act: Easier for UK higher courts to override EU cases (not yet in force at the start or 2024).

Under those new rules, as well as higher courts having somewhat greater scope to depart from pre-2021 EU case law, lower courts who cannot themselves overrule such case law – including employment tribunals and employment appeal tribunals – will be able to refer the issue to higher appeal courts who can. Lower court cases may therefore be delayed while the issue is referred to higher courts, which may be struggling to deal with a large number of such referrals on different pieces of legislation (not just on employment).

Proportionality: My view

I would expect that ultimately – after any delays to have higher courts consider the issue – UK courts are likely to pretty much keep the existing interpretation of proportionality. Even on the thorny issue of how far cost is relevant to justification, I don’t see why they would want to depart from the approach they have developed over many years in the light of EU case law. See too Objective justification defence>Brexit uncertainty.

Note that British courts currently seem to apply the EU proportionality rules even to non-employment cases where EU law has never applied: Objective justification defence>Justification test does not seem to vary depending on whether EU law applied.

Pre-2021 EU case law will “normally” still apply

Note: The following will change to some extent when further amendments to s.6(3) EU (Withdrawal) Act 2018 take effect: Retained EU Law Act 2023>Effect of REUL Act: Easier for UK higher courts to override EU cases, and referral system. As at the start of 2024, these further amendments were apparently not yet in force.

General rule

S.6(3) EU (Withdrawal) Act 2018 (amended by REUL Act 2023 Sch 2 para 8, and by regulations 2020/1525) say that in interpreting “assimilated law”, which was previously called “retained EU law”, the UK courts must still follow decisions made before the end of 2020 by the EU Court of Justice, or by UK courts on EU law (technical note, below), subject to two exceptions:

“Assimilated law”, defined in s.6(7), includes UK legislation so far as it implements EU law, so it should include the employment provisions of the EqA, or at least most of them. See below Technical note: Why the Equality Act employment provisions are “assimilated law”.

Precedent effect of EU court decisions

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. There is an exception so far as the intention of amendments to the EqA after 2020 is inconsistent with that, but this exception should not apply to the regulations (above) preserving EU case law, whose intention seems consistent with remaining bound. And it seems that even the Court of Appeal and Supreme Court will “normally follow” those decisions.

It is unclear how far, if at all, any of that is affected by the abolition of the principle of supremacy of EU law: above Supremacy of EU law ended on 31st December, 2023. On where that gives particular issues, see above EU law going beyond EqA wording but not preserved by regulations.

Precedent effect of British court decisions on EU law

Also it seems (subject to any effects of abolishing that supremacy principle) that after 2020 the UK courts are bound to follow pre-2021 decisions of UK courts on EU law (but see technical note below) in relation to the EqA to the same extent as before, except so far as the intention of amendments to the EqA after 2020 is inconsistent with that (again unlike the regulations, above). This is under s.6(3) EU (Withdrawal) Act 2018. However, s.6(4)(c) says that a court is not bound by a UK court decision on EU law if the decision would not normally bind it, eg if the decision is by a lower court.

So for example, employment tribunals continue to be bound by pre-2021 employment tribunal decisions, even where these interpreted the EqA to conform with EU law (unless that supremacy point alters it, which I doubt).

Exception for the Supreme Court and Court of Appeal

Note: All this should not really matter as regards the wider definition of disability, and people without the protected characteristic claiming indirect discrimination, where the relevant EU court decisions have roughly been taken into the wording of the EqA by the regulations, above.

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. This is under The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 SI 2020/1525, which followed 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 an EU court decision which has been applied or modified by a pre-2021 Supreme Court decision, or subject to limited exceptions by a pre-2021 Court of Appeal decision. This is because 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 or CofA decisions, because they “have effect on” 31st December 2020.

What test is applied in deciding whether a higher court should depart from EU Court decisions?

In deciding whether to follow pre-2021 EU Court of Justice decisions, 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 (set out below) to that effect in 1966. 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. The 1966 Practice Statement reads:

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.

[1966] 1 WLR 1234. Also wikipedia.org.

Accordingly, in deciding whether to depart from pre-2021 EU Court of Justice decisions, 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 the Supreme Court may overrule a Court of Appeal decision. 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 considered whether to depart from EU case law under these rules was:

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?

Comment: Departing from retained EU case law: new Court of Appeal judgment (eurelationslaw.com)

However, the Court of Appeal decided to depart from EU case law in Industrial Cleaning v Intelligent Cleaning Equipment [2023] EWCA Civ 1451. Clearing up when the Courts will depart from retained EU case law (eurelationslaw.com) discusses this case, including particular factors which influenced the court.

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 an EU Court decision? As discussed at that link, it seems unlikely that a decision to be made by the British 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 its decision would have 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.

Same rules on whether to depart from EU case law apply if claim arose before 2021

The tests above (under s.6 EU (Withdrawal) Act), on when higher courts in Britain can depart from EU case law, seem to apply even where the discrimination happened before Brexit, ie before the end of 2020.

The result of the 2024 Supreme Court decision in Lipton v BA Cityflier seems to be that even for claims which arose before Brexit (when UK courts were bound by EU court decisions), higher courts in Britain making decisions after Brexit about these claims are allowed to depart from EU case law, subject to the tests in s.6.

EU Court decisions made after 2020

In summary, UK courts are now not bound by these, but “may have regard” to them.

S.6(1)(2) EU (Withdrawal) Act 2018 says that in interpreting assimilated law (such as the EqA 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).

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.

The same applies to discrimination which occurred before the end of 2020

Yes, the result of the 2024 Supreme Court decision in Lipton v BA Cityflier seems to be that even for claims which arose before Brexit (when UK courts would have been bound by subsequent EU court decisions), British courts are not bound by but may “have regard to EU court decisions made after the end of 2022.

However the Supreme Court in Lipton said at §115 that the fact that a cause of action accrued before the end of 2020 may be a factor that a court can take into account when deciding how to “have regard to” a post-Brexit EU court decision under s.6(2) EU (Withdrawal) Act 2018.

Direct effect – no longer applicable as such

Subject to any effects of s.6(3) EU (Withdrawal) Act 2018 (above Pre-2021 EU case law will “normally” still apply), it seems EU directives no longer have direct effect in Britain.

“Direct effect” rights under EU directives (against public sector bodies) were brought into UK law at the end of 2020 by s.4 EU (Withdrawal) Act 2018, subject to a proviso: Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Direct effect. However, from the end of 2023 s.4 was repealed by s.2(1) REUL Act 2023.

Also, before the end of 2020 the Kücükdeveci principle might allow a claim under EU law even against a private sector employer. However, the repeal of general principles of EU law from the end of 2023 (s.4 REUL Act 2023) seems to be an additional reason why the Kücükdeveci principle should no longer apply.

Technical note: Why the Equality Act employment provisions are “assimilated law”

Why does it matter?

It matters that the Equality Act 2010 (EqA) employment provisions are “assimilated law” (previously called “retained EU law”) within the EU (Withdrawal) Act 2018 mainly because the s.6(3) provisions on applying pre-2021 case law are expressed to apply to assimilated law.

Also, various powers which allowed the government to amend statutes, such as s.8 of the 2018 Act, applied to “retained EU law”.

Technical reasoning why the EqA is “assimilated law” so far as it implements EU law

The EqA seems to be “assimilated law” so far as it implements EU law. This includes the EqA’s employment provisions (or at least most of them).The technical explanation for this is as follows.

“Retained EU law” became “assimilated law” from the start of 2024 (s.5 REUL Act 2023).

S.6(7) EU (Withdrawal) Act 2018 (amended by REUL Act 2023 Sch 2 para 8(3)(e)) defines as assimilated law: “anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2 or 3…”.

So looking at s.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 say 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 existed immediately before EU membership ceased, on 31st January 2020, 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 EqA “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 EqA when passed in 2010 was surely to implement the relevant EU directives within the UK, so as to fall within the first option. One way or another, the EqA so far as it implements the Framework Employment Directive should fall within the wording.

It might be thought that the definition of assimilated law in s.6(7) EU (Withdrawal) Act 2018 does not include the EqA, because the EqA 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 EqA continues to be domestic law after exit day, it can under s.20(6) be “assimilated law” even though it would have continued in force irrespective of s.2. (Note: The 2020 Act added s.20(5A) to the 2018 Act. This did 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. Also from a policy point of view, including the EqA as “assimilated law (previously called “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 EqA implement EU law?

EqA employment provisions

The EqA therefore seems to be “assimilated law” so far as it implements EU law. This includes (at least most of) the EqA’s employment provisions.

There may be employment provisions of the EqA which are not strictly required by the EU Framework directive or other EU law. However in practice the UK courts have seemed to view all its employment provisions as affected by EU law, for example when applying the definition of ‘disability’ in according with EU Court judgments. Before 2024 when the wider definition of disability was brought into the EqA, 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. In the employment case of Banaszczyk v Booker, 2016, the EAT made the point that the EqA 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 “assimilated 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: S.6 may apply even to non-EU law decisions?

As well as EU court decisions, s.6 EU (Withdrawal) Act 2018 includes “assimilated domestic case law”. Under s.6(6) assimilated domestic case law means, broadly, pre-2021 UK court decisions “so far as they … relate to anything to which section 2 …. applies”.

This wording does not quite track the definition of “assimilated law”, which seems to include the employment provisions of the EqA: above Technical note: Why the Equality Act employment provisions are “assimilated law”. However, I think most likely the EqA employment provisions would be seen as something to which s.2 EU (Withdrawal) Act applies. This would mean though – read literally – that any employment-related pre-2021 British case law on the EqA is “assimilated domestic case law”, even though not related to EU law.

The alternative literal reading seems to me to be that no British case law on the EqA is “assimilated domestic case law”. It is difficult to imagine that that was intended.

The courts may adopt some non-literal interpretation. We’ll have to see. On this page, I just talk about EU-related British court decisions, or similar.

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.

20th anniversary of stammeringlaw, 1999-2019