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

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This page does not apply outside Great Britain.
Last updated 30th October, 2024 (part update 29th October, 2025).

From 1st January 2024, the Equality Act (EqA) has been amended to expressly include some EU case law, including on the meaning of disability. However, there are significant areas of uncertainty.

Table of page contents

Summary

  • After the end of 2020, the UK Parliament can amend the Equality Act (EqA) as it wishes: Ability to amend Equality Act after Brexit. As to how British courts interpret pre-2021 law such as the EqA, largely the supremacy of EU law ended on 31st December, 2023 (below).
  • However, from the start of 2024, some EU case law is expressly incorporated into the wording of the EqA. This includes the wider definition of disability in employment claims. Below EqA regulations preserve parts of EU law.
  • The position is unclear in other instances where British courts have reinterpreted the EqA based on EU law, but which have not been included in the 2024 amendments to the EqA: 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 EU case law on what is “proportionate”, an important issue in many EqA cases. This is partly because the EU general principle of proportionality was in the UK from the start of 2024. Below Proportionality.
  • British legislation still has rules requiring lower courts to continue to follow pre-2021 EU-related case law, at least if British legislation is unamended. It seems that higher courts should still “normally” follow this case law, but they can depart from it when it appears right to do so”. Changes to that test, and allowing referrals by lower courts, were due to take effect in October 2024, but have been frozen by the Labour government. Below Pre-2021 EU case law will “normally” still apply.
  • Even apart from that legislation, EU law should remain relevant under normal principles of purposive interpretation: below Purposive interpretation by reference to EU law.
  • 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.
  • This page is my interpretation of the position. It should be treated with particular caution as to a large extent we do not yet have court decisions on the issues it discusses.

Supremacy of EU law ended on 31st December, 2023

After Brexit (the end of 2020) up to the end of 2023, UK legislation said that the principle of the supremacy of EU law continued to apply 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 principle was abolished by s.3 Retained EU Law (Revocation and Reform) Act 2023 (REUL Act).

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

Supremacy: Relevance to EqA

In the light of those changes, regulations have specifically amended the EqA to preserve EU case law giving a wider meaning to “disability” in employment claims, and also widening who can claim indirect discrimination. Clearly British courts should follow this new EqA wording: below EqA regulations preserving parts of EU law.

In other areas, it is unclear how far those changes (abolition of supremacy of EU law, and of general principles) matter to disability discrimination law. See below EU law going beyond EqA wording but not preserved by regulations and Proportionality.

Supremacy: If discrimination happened before the end of 2023

Those changes – the abolition of the 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 that ss.3 and 4 “do not apply in relation to anything occurring before the end of 2023”. For completeness, ss.3 and 4 were brought into effect from 1st January 2024 by reg 3, SI 2023/1363.

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

On the Marleasing principle, which at least in the past has enabled UK courts to reinterpret the EqA to comply with EU law, see below Marleasing principle.

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 instead 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” in employment claims, for example to include an exam for promotion, or applying for a job.

In order to preserve this wider definition of disability, the regulations have now amended the EqA to expressly say that in employment claims, 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, at least as previously applied by EAT decisions: below Status of pre-2021 case law.

“Same disadvantage” indirect discrimination

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 substantively 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 “Same advantage” indirect discrimination (s.19A).

For example, 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 where these regulations apply

See Disability: ‘Normal day-to-day activities’>Technical note: Should pre-2021 case law on wider definition of disability continue to apply?

Apart from s.6 EU (Withdrawal) Act, another argument for taking into account past EU case law in interpreting the amendments made by these regulations is Purposive interpretation by reference to EU law, below.

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 courts had interpreted the EqA in a way not permitted by its actual wording. 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 continue to apply from 1st January 2024. Examples relevant to disability discrimination of what may happen if reinterpretations no longer apply include:

  1. University students may often be left without a claim when discriminated against by their work placement provider: EU Framework Employment Directive>Work placements related to education courses, a reinterpretation by the Court of Appeal.
  2. Police officers may often be unable to bring EqA employment tribunal claims for acts of misconduct panels: EU Framework Employment Directive>Claims by police officers in respect of disciplinary action, a Supreme Court decision.
  3. Not being allowed to bring a victimisation claim against an employer if one has not oneself done a protected act, but is victimised because of someone else’s act: Victimisation>Victimisation ‘by association?, only an employment tribunal decision.
  4. Before Brexit, the Bleuse principle might allow people working in the EU for, say, a company registered in the UK to claim under the EqA, even though under the “sufficient connection” test British legislation would not apply. I think it very unlikely the Bleuse principle now applies, at least from 1st January 2024: Connection of employment with Great Britain>Wider scope through EU law (Bleuse principle) no longer applicable after Brexit?

Marleasing principle

Before the end of 2023

The decisions reinterpreting the EqA 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, subject to certain limits. The Marleasing principle probably continues to apply for discrimination occurring up to the end of 2023 (when the supremacy of EU law still applied), subject to any discretion of higher courts under s.6 EU (Withdrawal) Act not to apply relevant pre-2021 EU case law: below: Pre-2021 EU case law will “normally” still apply. See:

From start of 2024

It seems likely that for discrimination which happened after the end of 2023, the Marleasing principle will no longer apply:

But what about other possible ways of applying EU law to the Equality Act? …

S.6 EU Withdrawal Act 2024

S.6 still requires lower courts (including the Employment Appeal Tribunal) to follow pre-2021 EU-related case law. It also provides for the test to be applied by the Supreme Court and Court of Appeal (“higher courts”) in deciding whether they should follow that case law. See below Pre-2021 EU case law will “normally” still apply.

Does this mean that, where a previous British appeal court has re-interpreted the EqA under the Marleasing principle, lower courts now should still – and perhaps higher courts should “normally” – continue to follow that appeal court decision, even if it is not consistent with the EqA wording? Perhaps yes, but this remains to be determined.

(I do not see how one can argue for extended protection from victimisation – example 3. above – on this basis, as there is no direct appeal court authority.)

Purposive interpretation by reference to EU law

Quite apart from the Marleasing principle and s.6 EU (Withdrawal) Act, EU law should continue to be relevant in interpreting the EqA under normal principles of purposive interpretation. This is not limited to discrimination which occurred before the end of 2023, but continues to apply for discrimination happening now (2024 and beyond).

For example in Brent LBC v Risk Management Partners (bailii.org) [2011] UKSC 7 at para 25, the Supreme Court took the approach that: “Having regard to the background of EU law against which the Regulations were made, the definitions in the Regulations can be taken to express the same idea as those in the Directive.”

There have been more recent cases on similar lines, including now a post-Brexit decision of the Supreme Court. See:

Correcting drafting errors, or other non-EU law arguments

For example, the Court of Appeal in Jessemey v Rowstock held that quite apart from EU law, the conditions were met under British domestic law for the court to correct a drafting error, so that post-employment victimisation falls within s.108 EqA: Post-employment victimisation covered.

Proportionality

A very important – because it is widely applicable – issue which may now be uncertain following the REUL Act 2023 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 possible 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 as before – as I suspect they will (My view below) – there may 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. They might continue to do so under s.6 of the 2018 Act: below Pre-2021 EU case law will “normally” still apply. Or they might do so as discussed above in Purposive interpretation by reference to EU law.

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

Summary and context

  • The rules I discuss here are those in s.6 EU (Withdrawal) Act 2018. Broadly s.6 says that at least if British legislation is unamended, only higher courts (mainly the Court of Appeal and Supreme Court) can depart from pre-2021 EU case law. Even higher courts should “normally” follow this case law, but they can depart from it “when it appears right to do so”.
  • However, these s.6 rules may only have a fairly limited role to play as regards the EqA: below Relevance to the EqA.
  • My summary of these rules in s.6 EU (Withdrawal) Act 2018 leaves out amendments which would be made by s.6 REUL Act 2023. Those amendments were passed under the Conservative government, and it is unclear whether (and if so when) the Labour government will bring them into force: Retained EU Law Act 2023>S.6 no longer takes effect in October 2024. I outline the REUL Act amendments below in Technical note: S.6 REUL Act if and when it comes into effect. They would make it somewhat easier for higher courts to depart from pre-2021 EU case law, and enable lower courts to refer cases to higher courts to ask whether they should depart from it.

Relevance to the EqA

The rules in s.6 EU (Withdrawal) Act 2018 which I discuss here should not matter much as regards the wider definition of disability, and people without the protected characteristic claiming indirect discrimination. There the relevant EU court decisions have roughly been taken into the wording of the EqA by British regulations: above EqA regulations preserve parts of EU law.

These s.6 rules are more relevant as regards Proportionality (above) and EU law going beyond EqA wording but not preserved by regulations (above).

However, remember that even apart from the s.6 rules discussed here, it may be possible to argue for a Purposive interpretation by reference to EU law (above).

Basic rules on departing from pre-2021 EU case law

S.6(3) EU (Withdrawal) Act 2018 as amended says that in interpreting “assimilated law”, which includes the EqA employment provisions, 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 three exceptions:

  • Exception 1: The Supreme Court and Court of Appeal (and other “higher courts”) need not necessarily follow this EU case law. However, it seems that higher courts should pre-2021 EU case law as “normally” binding (subject to exceptions 2 and 3), but can depart from it “when it appears right to do so”. See below Technical note: Where can higher courts depart from pre-2021 EU case law.
  • Exception 2: For any court, the s.6 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 case law is consistent with the intention of the modification. See below Post-2020 modifications of UK law.
  • Exception 3: As regards whether to follow decisions of UK courts, a court is not bound by case law which would not bind it under the normal precedent rules (s.6(4)(c) EU (Withdrawal) Act 2018). For example, clearly the Court of Appeal is not bound by an Employment Appeal Tribunal decision.

“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”.

Post-2020 modifications of UK law

Any court can depart from EU-related case law if the UK law has been modified (eg amended by the UK Parliament) after the end of 2020, unless following the case law is consistent with the intention of the modification: s.6(3)(6) EU (Withdrawal) Act 2018.

It does seem consistent with the intention of the regulations (above) which amended the EqA to preserve EU case law, that (lower) courts should continue to be bound by relevant pre-2021 EU cases. Even so, most case law on the wider definition of “disability” is at employment appeal tribunal level. This could in any event be overruled by the Court of Appeal or Supreme Court (see exception 3. above): Normal day-to-day activities>Technical note: Should pre-2021 case law on wider definition of disability continue to apply?

Claims arising before 2021: can higher court still depart from pre-2021 EU case law?

If the (non-binding) decision of the Supreme Court majority in Lipton v BA Cityflier is upheld, the answer seems to be yes. So even for claims which arose before Brexit (when UK courts were bound by EU court decisions), higher courts in Britain making decisions after Brexit would be allowed to depart from EU case law, subject to the test in s.6 EU (Withdrawal) Act. However there was a strong dissenting judgment in the Supreme Court in Lipton, and the issue may be reconsidered.

Lower courts remain bound by pre-2021 EU-related case law

Lower courts are most UK courts and tribunals, including employment tribunals and the employment appeal tribunal.

Lower courts: Precedent effect of EU court decisions

Lower courts remain bound by decisions of the EU Court of Justice made before the end of 2020, subject to exceptions 2. and 3. in Basic rules on departing from pre-2021 EU case law.

Is that position affected by the abolition of the principle of supremacy of EU law? – above Supremacy of EU law ended on 31st December, 2023. I suspect not, but that remains to be clarified.

Lower courts: Precedent effect of British court decisions on EU law

Also it seems (subject to any effects of abolishing that supremacy principle) that the UK lower courts continue to be bound to follow pre-2021 decisions of UK courts on EU law in relation to the EqA to the same extent as before. That is again subject to exceptions 2. and 3. in Basic rules on departing from pre-2021 EU case law.

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

Legal provision

This is under s.6(3) EU (Withdrawal) Act 2018.

As to whether s.6(3) is limited to decisions on EU law, or may go beyond that, see below Technical note: S.6 may apply even to non-EU law decisions?

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.

This leaves UK courts a very wide discretion, despite warnings against that. Lord Neuberger, then president of the Supreme Court, argued in 2017 that the legislation should be clearer. 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 EU Court]”: 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.

Post-2020 EU court decisions: Same position for discrimination which occurred before the end of 2020

All judges in the 2024 Supreme Court decision of Lipton v BA Cityflier agreed that even for claims which arose before Brexit (when UK courts would have been bound by subsequent EU court decisions), British courts are not now bound by – but may “have regard to” – EU court decisions made after the end of 2020. Even the dissenting judge in Lipton agreed with this [§229-233].

The Supreme Court majority in Lipton did say 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-2020 EU court decision.

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, for discrimination occurring after the end of 2023.

“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.

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 EU Framework Employment Directive>Where does (or may?) EU law affect UK courts’ interpretation of the Equality Act?

Technical note: Where can higher courts depart from pre-2021 EU case law

This supplements Basic rules on departing from pre-2021 EU case law, above.

Exceptions allowing Supreme Court and Court of Appeal to depart from EU court decisions

Where British legislation has been amended after 2020, sometimes British courts are not in any event bound by pre-2021 EU court decisions: above Post-2020 modifications of UK law.

Otherwise, the Supreme Court can depart from pre-2021 EU Court of Justice decisions where the Supreme Court 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 below Supreme Court test, applied by higher courts to pre-2021 EU case law).

The Court of Appeal and some equivalent courts can depart from pre-2021 EU Court decisions, 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 has to follow an EU court decision if it 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.

Supreme Court test, applied by higher courts to pre-2021 EU case law

In deciding whether to follow pre-2021 EU Court of Justice decisions, both the Supreme Court and Court of Appeal have to 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 it had not re-issued this Statement, but that the 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”: para 3.5 under ‘Practice Direction 3’ (supremecourt.uk), citing 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 would treat the EU case law as “normally binding” but would 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 that 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.

Some cases (not on the EqA) where the Court of Appeal has considered whether to depart from pre-2021 EU case law under this test:

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). 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 widely 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.

Technical note: S.6 REUL Act if and when it comes into effect

S.6 REUL Act frozen by Labour government

S.6 Retained EU Law Act 2023 would amend s.6 EU (Withdrawal) Act 2018 to make it somewhat easier for higher courts to depart from pre-2021 EU case law, and enable lower courts to refer cases to higher courts to ask whether they should depart from it.

S.6 REUL Act was to take effect from 1st October 2024. However, this is no longer happening. In September 2024 the Labour government repealed the regulations which would have brought s.6 into force. The government said it would look at this issue again in the wider context of its work to reset UK relations with the EU. So the future of s.6 is uncertain. More: Retained EU Law Act 2023>S.6 no longer takes effect in October 2024.

Tests for higher courts to depart from pre-2021 EU-related case law, if and when s.6 REUL Act takes effect

Higher courts include the Supreme Court and Court of Appeal, but not the employment appeal tribunal (EAT).

Except as held otherwise by the higher courts – and subject to exceptions 2. and 3. in Basic rules on departing from pre-2021 EU case law above – the EAT and employment tribunals would continue to be bound by EU case law. However, they could refer to a higher court the question of whether they should depart from the EU-related case law: below Referring issues to higher courts.

Test for higher courts to depart from EU court decisions (if s.6 REUL Act takes effect)

As amended by s.6(3) REUL Act, s.6(5) EU (Withdrawal) Act 2018 would give certain factors to which a higher court – the Supreme Court, Court of Appeal or equivalent – must “among other things” have regard in deciding whether to follow those pre-2021 EU court decisions, namely —

  1. the fact that decisions of a foreign court are not (unless otherwise provided) binding;
  2. any changes of circumstances which are relevant to the EU case law; and
  3. the extent to which the EU case law restricts the proper development of domestic law.

On point 1, note that even without the s.6 REUL Act amendments, s.6(4) EU (Withdrawal) Act and regulations say that the Supreme Court and Court of Appeal are not bound by pre-2021 EU Court decisions.

For comment on the change in test, see below Effect of different test.

Test for higher court to depart from own EU-related case law (if s.6 REUL Act takes effect)

As amended by s.6(4) REUL Act 2023, s.6(5ZA) EU (Withdrawal) Act 2018 would say that a higher court can depart from its own pre-2021 case law on EU-derived legislation etc “if it considers it right to do so, having regard (among other things) to” —

  1. the extent to which that case law is determined or influenced by pre-2021 EU court decisions from which the court has departed or would depart;
  2. any changes of circumstances which are relevant to that case law;
  3. the extent to which that case law restricts the proper development of domestic law.

So this would somewhat relax the ability of the Court of Appeal and the Supreme Court to depart from their own pre-2021 decisions related to EU law. Generally the Court of Appeal is bound by its own previous decisions subject to limited exceptions, and the Supreme Court “normally” follows its own previous decisions.

Effect of different test in s.6 REUL Act

Compared with the current test (above Technical note: Where can higher courts depart from pre-2021 EU case law), would these changes make it more likely that higher courts in Britain will depart from pre-2021 EU-related case law? Probably to some extent, but we don’t know how much. The change was clearly intended by the Conservative government to make it less likely that higher courts follow EU-related decisions, which creates greater uncertainty until higher courts decide the issue. As well as the uncertainty, not following EU-related decisions would almost certainly reduce protection under the EqA. Under the REUL Act, the EU (Withdrawal) Act 2018 would no longer effectively state that those EU decisions should “normally” be followed.

There is discussion of the effect the new test might have towards the end of Clearing up when the Courts will depart from retained EU case law (eurelationslaw.com), 13 December 2023.

Lower courts: Referring issues to higher courts (if and when s.6 REUL Act takes effect)

Lower courts who cannot themselves overrule pre-2021 EU-related case law – including employment tribunals and employment appeal tribunals – would be able to refer the issue to higher appeal courts who can. Government law officers such as the Attorney General could also refer the issue, and/or could intervene in proceedings.

It would therefore be easier for cases to get to the level of higher courts, ie Court of Appeal and Supreme Court, who could (if the higher court decides it is appropriate) decide that lower courts should depart from pre-2021 EU case law in a particular context.

This is all under ss.6A to 6C EU (Withdrawal) Act 2018, added by s.6(8) REUL Act.

Timing issues (if and when s.6 REUL Act takes effect)

If s.6 REUL Act is eventually brought into effect, the amendments it makes could potentially apply even to claims arising now, or indeed already before an employment tribunal.

The Conservative government’s regulations SI 714/2024 (repealed by Labour), which brought s.6 REUL Act into effect from 1st October 2024, potentially applied the amendments to any court decision made on or after that date, even where the claim arose before October 2024. However, any “appeal” to a higher court was likely to fall within the saving provisions in reg 3 of SI 714/2024. So it would have been reg 3 that determined whether the amended rules applied as regards the test for whether higher courts should depart from EU case law, and interventions by law officers (reg 3(1)). For example, if permission to appeal was needed, reg 3 said the amendments would apply if permission to appeal was given before 1st October 2024.

So the s.6 REUL Act amendments on when higher courts could depart from EU case law could apply to claims which arose before October 2024, but (very broadly) not to appeals made before that time. Similarly, if s.6 REUL Act is brought into force in future, then depending on what the regulations say, it could apply to claims arising now, or indeed where a claim has already been put in to an employment tribunal.

It seemed that any lower court decision from 1st October 2024 onwards could refer a point to a higher court under the new rules in Lower courts: Referring issues to higher courts, below. The reg 3 saving provisions did not apply here. So again, the claim might have arisen, and indeed been made, before October 2024.

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 (above Pre-2021 EU case law will “normally” still apply) 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 of the 2018 Act, s.2(1) says that “EU-derived domestic legislation” as it has effect in domestic law immediately before IP completion day (namely 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 was 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 that this wording was designed to cover legislation which was either specifically passed for the purpose of implementing EU obligations, or (as regards the word “operating”) which had become part of the way in which the UK demonstrated 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 on it 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 accordance 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” (ie 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 a UK court or tribunal 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 EU 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”, which is clearly not 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.

25th anniversary of stammeringlaw, 1999-2024