Home » Disability equality law » Brexit, human rights and UN » Brexit, EU law and disability discrimination under Equality Act 2010 » Brexit: Effect of EU law when interpreting Equality Act, from 2024 » Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023

Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023

Disclaimer – please read
This page does not apply outside Great Britain.
Last updated 30th December 2020 (part update 13th December 2023).

This page applies only up to 31st December 2023. From 1st January 2021 (at least to the end of 2023), 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.

Note: I deal with the position from 1st January 2024 on Brexit: Effect of EU law when interpreting Equality Act, from 2024. See too Retained EU Law Act 2023.

Summary (2021 to 2023)

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 intention of the modification (s.5(3)). So the principle does not prevent the UK Parliament passing or amending laws after 2020.

S.5(2) EU (Withdrawal Act) 2018 – continuing the principle of supremacy of EU law for pre-2021 enactments – and/or other provisions of the 2018 Act seem to include the principle that UK courts should interpret UK legislation to conform with EU directives so far as possible, called the Marleasing principle (below). 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 and the EU interpretation is inconsistent with the intention of the amendment. Any amendment will normally be by the UK Parliament.

The position is similar for ‘retained general principles of EU law’ (below).

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

S.6(3) EU (Withdrawal) Act 2018 and regulations say that in interpreting “retained EU law”, the UK courts will still have to follow decisions made before the end of 2020 by the EU Court of Justice, or by UK courts on EU law, subject to two exceptions:

“Retained EU law”, defined in s.6(7), includes UK legislation which implements EU law, and should 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. 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 (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 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 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 in it.

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 I think 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 intention 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

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. This is called the Marleasing principle: see EU Framework Employment Directive>Marleasing principle: interpreting Equality Act to comply with Directive. Very often this principle allows the UK court to go against the wording of the UK legislation: below Departing from the wording of the Equality Act. The principle is also known as the duty of consistent interpretation (or conforming interpretation), or as indirect effect.

It seems that this principle continues to apply after the end of 2020, on one or more of several following grounds: below Technical note: Why Marleasing principle continues. Therefore it seems UK courts should continue to interpret the Equality Act 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. Employment Appeal Decisions interpreting the Equality Act to comply with the Directive and with EU Court decisions also remain binding on employment tribunals (unless overruled by higher courts).

This does not apply so far as the UK Parliament amends the Equality Act after 2020, unless applying the EU interpretation is consistent with the intention of the modification: s.5(3) and s.6(3)(6) EU (Withdrawal) Act 2018 and Technical note below.

Example: To comply with pre-2021 EU Court decisions on the Framework Employment Directive, the Equality Act meaning of “disability” is wider in employment claims because “normal day-to-day activities” (on which the impairment must have a substantial effect) have been expanded to include other activities relevant to participation in professional life: EU law: ‘normal day-to-day activity’ is very wide in employment claims. For example the Employment Appeal Tribunal in Paterson, discussed in that link, held that an impairment having a substantial (ie more than minor or trivial) effect in a high level promotion exam was a disability.

UK courts should continue to apply these EU Court decisions unless the Supreme Court or Court of Appeal decides to depart from them.

Also unless higher courts decide otherwise, employment tribunals continue to be bound (as “retained case law” under s. 6) by the various Employment Appeal Tribunal decisions – such as Paterson – which to comply with those EU Court decisions have given a wide meaning to “disability” in EqA employment claims.

This will not apply so far as (the relevant part of?) the EqA definition of disability has been amended after the end of 2020 and the EU interpretation would be inconsistent with the intention of the modification.

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.

The Marleasing principle may be revoked from the end of 2023 by the Retained EU Law Bill.

Departing from the wording of the Equality Act

Since the Marleasing principle continues, 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 British statute has been amended after 2020 and the EU interpretation is inconsistent with the intention of the amendment. This is part of what is required and allowed by the Marleasing principle (above).

Applying the Marleasing principle in this way is in line 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.

Can Supreme Court and Court of Appeal depart from Marleasing principle?

Arguably the Supreme Court and Court of Appeal are bound by the Marleasing principle as regards pre-2021 legislation (unless amended), since it seems likely the principle is continued under s.4 EU (Withdrawal Act) 2018 and/or is part of the supremacy of EU law (above) continued under s.5(2) EU (Withdrawal Act) 2018 (see possible grounds for the principle above). Ss.4 and 5 do not say the Supreme Court etc can override their provisions. A possible counter-argument is that the Marleasing principle was a creation of EU Court decisions which the Supreme Court or Court of Appeal can depart from subject to the normal test, discussed above in Exception for the Supreme Court and Court of Appeal. I imagine that in practice, probably at most these higher courts might adjust the limitations of the principle, as to when it is permissible to depart from express wording of UK legislation.

Even if the Supreme Court and Court of Appeal are bound by the Marleasing principle, after 2020 they may decide to interpret EU directives differently from the EU Court, including the Framework Employment Directive. So even if the Supreme Court and Court of Appeal have to interpret UK legislation so as to comply with EU law (including directives) so far as possible, they might interpret that EU law differently from the EU Court – albeit they will “normally” follow pre-2021 decisions of the EU Court.

Direct effect

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, but subject to a proviso. The scope of the proviso is currently unclear. Direct effect of a right continues under s.4 at least if a previous EU or UK court decision before the end of 2020 recognised the right, but also in some other circumstances. How far this goes – and indeed whether any directive right that is sufficiently clear, precise and unconditional continues to have direct effect – has yet to be clarified by the courts. This is discussed further below in Technical note: Direct effect.

Francovich damages

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.

Kücükdeveci principle

On the possibility of relying on the Directive against private sector employers, if exceptionally the EqA cannot be re-interpreted under the Marleasing principle (above), see below Kücükdeveci principle.

General principles and EU Charter

Relevance to Equality Act on disability?

The main way in which British courts achieve compliance of the EqA with EU law is by re-interpreting the EqA where necessary under the Marleasing principle, above. The provisions discussed below (on EU general principles and the EU Charter) do not seem to affect the ongoing applicability of this Marleasing principle. In particular, as regards Sch 1 para 3 EU (Withdrawal) Act 2018 below, the Marleasing principle involves reinterpreting rather than disapplying or quashing legislation.

The provisions below are more likely to be relevant if – very exceptionally – the EqA or regulations under it cannot be re-interpreted, and the claim is not against a public body such that direct effect (above) of the Directive could apply. The question would then arise whether – based on the Kücükdeveci principle (below), relying on the EU general principle of non-discrimination also discussed below – the British court could disapply the British legislation even in a claim against a private sector employer, looking at the exceptions in Sch 8 para 39.

General principles of EU law

Whilst in principle general principles of EU law seem to remain as part of domestic law after Brexit (and certainly remain relevant to interpreting EU-based legislation such as EqA employment provisions), there are important exceptions. What follows is subject to those exceptions (below).

“Retained general principles of EU law” – ie the principles as they stood immediately before the end of 2020 – need to be followed by UK courts after 2020 when determining the meaning, effect or validity of any retained EU law (such as the EqA employment provisions), so far as the UK law has not been modified after that end of 2020 (s.6(3)(7) EU (Withdrawal) Act 2018). Presumably the normal s.6 rules (above) apply as regards case law on these general principles of EU law.

It also seems likely that apart from s.6, and subject to relevant exceptions, general principles of EU law continue after Brexit under s.4 EU (Withdrawal) Act 2018. (There are differing views in cases, but see below Beattie case, and General principles as retained EU law and accrued EU law (eurelationslaw.com), November 2022.)

Examples of EU general principles given in para 59 of the Explanatory Notes to the 2018 Act or in the Equality Analysis: EU (Withdrawal) Bill (pdf) at para 21 include:

  • proportionality,
  • fundamental rights,
  • non-retroactivity,
  • equality before the law, non-discrimination and equality between men and women.

Exceptions for EU general principles

No general principle of EU law is part of UK law after the end of 2020 if it was not recognised as a general principle of EU law by the EU Court of Justice in a case decided before the end of that year, whether or not as an essential part of the decision (Sch 1 para 2 EU (Withdrawal) Act 2018).

Also, under Sch 1 para 3 EU (Withdrawal) Act 2018, but subject to Sch 8 para 39 below:

  • there is no right of action in domestic (ie British) law after the end of 2020 based on a failure to comply with any of the general principles of EU law (para 3(1)), 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 (para 3(2)).

Sch 1 para 3 does not seem to affect the continued application of the important Marleasing principle: see above Relevance to Equality Act on disability?

There are exceptions from Sch 1 para 3 in Sch 8 para 39. One of particular interest is Sch 8 para 39(5) which says Sch 1 para 3 (above) does not apply to proceedings begun before the end of 2023 challenging anything which occurred before the end of 2020, if (oversimplifying) the challenge is not to disapply or quash (a) an Act of Parliament or (b) regulations which, as a result of an Act of Parliament, could not have been different or which give effect to, or enforce, an Act of Parliament.

Also a blog suggests it is very hard to see how the exception in Sch 8 para 39(6) does not significantly reduce or un-do the impact of the “rule” in Sch 1 para 3(2) above, on disapplying or quashing: Retained EU law: a guide for the perplexed (eurelationslaw.com), December 2020.

A case where the exception in para 39(5) was held not to apply:

Secretary of State for Work & Pensions v Beattie (bailii.org), Employment Appeal Tribunal, 2022
The claimants argued that the Equality Act (Age Exceptions for Pension Schemes) Order 2010 should be disapplied as being incompatible with the EU principle of non-discrimination encapsulated in the Framework Employment Directive. This principle was stated in Article 21 of the EU Charter of Fundamental Rights.

The court held that only those claimants who submitted their claims before the end of 2020 could make this claim, as they fell within the exception in Sch 8 para 39(3) of the Withdrawal Act. In principle. general principles of EU law survived past the end of 2020 under s.4 Withdrawal Act, but people who started their claims after the end of 2020 were barred from claiming by s.5(4) (below) as regards the Charter, and by Sch 1 para 3(2) above so far as the non-discrimination principle existed irrespective of the Charter. Given the nature of these regulations, the exception in Sch 8 para 39(5) – which may allow a claim started before the end of 2023 – did not apply (para 140 of EAT decision, with para 21-22).

Note: Direct effect did not apply in this case as the pensions trustees were held not to be an emanation of the state. It seems that the relevant provision of the regulations could not be re-interpreted under the Marleasing principle. The claimants were therefore left with (unsuccessfully) trying to disapply the regulations under the Kücükdeveci principle, based on a general principle of EU law.

The decision may well be appealed further.

Discussion of general principles of EU law after Brexit in the light of post-Brexit British court decisions:

Kücükdeveci principle

‘Direct effect’ (above) of an EU directive only applies against public sector bodies, so not against private-sector employers. Even so, if an EU-compliant interpretation of the EqA under Marleasing (above) was 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. This claim would be based on the general principle of non-discrimination in EU law. As well as the Kücükdeveci case itself, Benkharbouche, below is an example of such a claim.

The Government considers that 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)). However that should be subject to the exceptions from Sch 1 para 3, in Sch 8 para 39: see above Exceptions. Also see EU Charter, below on arguing that the general principle of non-discrimination exists independently of the Charter.

EU Charter of Fundamental Rights

The EU Charter is not taken into UK law after the end of 2020 (s.5(4)(5) EU (Withdrawal) Act 2018), subject to limited exceptions in Sch 8 para 39.

Under s.5(5), this non-application of the Charter does not affect the retention in UK law of any fundamental rights or principles which exist irrespective of the Charter. In Beattie (above), at para 136-137, the claimants argued that because of this subsection (5), the EU general principle of non-discrimination/equal treatment remained after the end of 2020 despite being in Article 21 of the Charter, because under the Mangold case (as regards age) this principle existed before and irrespective of the Charter. The court did not have to decide this though since, on the facts, even as a general principle of EU law it would be excluded by Sch 1 para 3(2) above.

The Equality and Human Rights Commission has expressed concern that the EU Charter no longer applying 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 (ukscblog.com), 2017, the State Immunity Act 1978 was held to breach the right to a fair trial in 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:

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: Why Marleasing principle continues

This is the principle laid down by EU and UK court decisions that UK legislation implementing EU directives must be interpreted where possible to conform with EU law. Very often this principle allows the UK court to go against the wording of the UK legislation. See above Marleasing principle: interpreting the Equality Act to conform with the directive.

This technical note is about the legal grounds for saying the Marleasing principle continues to apply after the end of 2020. It seems the principle continues to apply on one or more of the following grounds:

  • The Marleasing principle is an “obligation” (on domestic courts) or a “remedy” within s.2(1) European Communities Act 1972 which after 2020 is preserved by s.4 EU (Withdrawal) Act 2018 (Bennion, Bailey and Norbury on Statutory Interpretation 8th ed, 2020, p.910).
  • Also relying on s.4, the Marleasing principle is perhaps part of the principle of supremacy of EU law (above) (Bennion above p.910, Duhs & Rao Retained EU Law: A Practical Guide, 2021, 4.1, 11.4 and 14.3.2). The principle of supremacy of EU law is preserved by s.4 EU (Withdrawal) Act subject to the exception in s.5(1) (Bennion above p.905 which says the main effect of s.5 is to limit what is preserved by s.4). S.5(2) EU (Withdrawal) Act makes clear that the principle of supremacy of EU law still continues after 2020 in respect of legislation passed before the end of that year.
  • Under s.6(3) EU (Withdrawal) Act the meaning and effect of any retained EU law – such as the Equality Act employment provisions (Technical note above) – is normally to be decided in accordance with pre-2021 EU or UK court decisions: above Pre-2021 EU case law will “normally” still apply This could include the Marleasing principle itself as set out in pre-2021 court decisions, and also court decisions on how the principle applies to particular provisions of the Equality Act, for example. (Duhs & Rao above, at 11.4, says s.6(3) is one of the provisions ensuring the Marleasing principle continues. Also Bennion above p.910-12, footnote 9, says s.6(3) might be suggested as a basis for the Marleasing principle continuing.)
  • Duhs & Rao above, at 11.4 and (at p.89) 11.5, sees s.2(1) EU (Withdrawal) Act 2018 as one of the provisions pointing to the continued relevance of the Marleasing principle. S.2(1) provides that EU-derived domestic legislation continues to have effect “as it has effect in domestic law immediately before [the end of 2020]”. To illustrate the relevance of this phrase, p.89 gives the example of the 2017 case in which the Supreme Court used the Marleasing principle to re-interpret s.42(1) Equality Act in respect of police misconduct panels. The book comments at pp.89-90 that the effect of the quoted phase is that s.42(1) continues to have effect taking into account the Supreme Court interpretation. It adds that the phrase also reinforces s.6(3) above.
    Also Bennion above, p.909, says this phrase in s.2(1) “as it has effect in domestic law immediately before [the end of 2020]” seems intended to buttress the effect of s.6(3). Bennion says it appears to be “intended to preserve any impact that EU law may have had before [the end of 2020] on the effect or interpretation of the domestic legislation (eg where EU law caused the domestic legislation to be disapplied, or to be interpreted in a particular way).” Bennion is evidently referring to the Marleasing principle here.

The Marleasing principle does not apply so far as the UK Parliament amends the Equality Act after 2020, unless applying the EU interpretation is consistent with the intention of the modification: s.5(3) and s.6(3)(6) EU (Withdrawal) Act 2018. Even if the UK court applied the Marleasing principle solely on the basis of s.4 EU (Withdrawal) Act under the first option above, I think the same should apply on the basis of later legislation taking precedence over earlier, coupled with s.5(3) limiting supremacy of any rights continued by s.4.

Technical note: Direct effect

This note expands on Direct effect above, giving more detail on how far EU directives continue to have direct effect under s.4 EU (Withdrawal) Act 2018.

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 this only applies if the right is 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 a right of the relevant kind must be before the end of 2020, but a decision of a UK court or tribunal recognising such a right can be after that time provided the case was begun before the end of 2020.

However it is not at all clear what “of a kind” means. It might mean:

  1. for a right to continue to have direct effect under s.4, it is sufficient that the right satisfies the general criteria for having direct effect, basically that the provision is sufficiently clear, precise and unconditional – such criteria being as determined by court decisions made before the end of 2020 (or by UK court decisions in proceedings begun before that time); or
  2. the previous court decision must have been on the specific right/provision of the particular directive, holding it to have direct effect; or
  3. some intermediate position: that a directive provision which a court before the end of 2020 held to have direct effect is in some other way (yet to be clarified) of the same “kind” as the provision argued to have continuing effect under s.4, perhaps as in the Harris case below.

There is some discussion of this below. However what “of a kind” means in this context is currently unclear, and likely to remain unclear until we have a Supreme Court decision.

The Explanatory Notes to the 2018 Act seem to say that the previous court decision must have held that the particular directive provision has direct effect, ie option 2 above:

98. The reference in subsection (2)(b) to rights ‘of a kind’ is intended to ensure that rights are retained if they are of a similar kind to those so recognised. So rights arising under a particular directive that have been recognised by a court before exit day as having direct effect, could be relied upon by other individuals who are not parties to that case, in circumstances which the directive is intended to address. Rights arising from any directly effective provisions of directives that have not been recognised prior to exit day (to the extent these might exist) will not be converted by this section (subject to the transitional etc provision in Schedule 8, Paragraph 38).
Paragraph 98 of the Explanatory Notes to the 2018 Act.

But as the House of Lords Constitutional Committee pointed out, it might be argued this is not actually what the statutory wording says:

“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 [option 2 above], 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 [option 1 above]. The language of clause 4 [ie the statutory wording] 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)

There is more recent commentary on this question in When do directives form part of Retained EU Law? Case comment (eurelationslaw.com), September 2022, discussing the 2022 High Court decision in Harris below. This blog argues the better interpretation of s.4(2)(b) to be the broader one, ie option 1 above.

The Harris decision seems to me to raise the possibility of some intermediate position, option 3 above. Harris suggests too that it does not matter if the previous court decision was wrong, at least if it has not been overturned on appeal, or later overruled. (However this latter point is unlikely to be relevant if option 1 applies, ie if no decision on the particular right or a related right is needed.)

Harris v Environment Agency (bailii.org) High Court, 2022
The court held at para 89-94 that article 6(2) of the Habitats Directive continues to have direct effect under s.4 EU (Withdrawal) Act 2018, notwithstanding s.4(2)(b).

Firstly, the EU Court had (before the end of 2020) held that article 6(3) of the Habitats Directive has direct effect, in a case called Waddenzee. That was not a decision on article 6(2), but the High Court said s.4(2)(b) does not require that the particular provision in issue has been held to have direct effect. S.4(2)(b) only requires that it is “of a kind” that has been held to have direct effect. The High Court continued: “There is a close relationship between article 6(2) and 6(3). They both require the national authorities to take steps to achieve the aims of the Habitats Directive and, in particular, to avoid deterioration of habitats and significant disturbance of species in the special areas of conservation. Article 6(3) applies prospectively. Article 6(2) enables a retrospective check that the article 6(3) steps remain adequate. Article 6(2) is thus “of a kind” that was recognised in Waddenzee as having direct effect.”

In any event, the High Court (at para 93) that it was sufficient that in 2019 an Upper Tribunal had held that the duties on member states under article 6(2) are binding on all public authorities of a member state, including the courts. S.4(2)(b) expressly stated that it is not necessary for this to be an essential part of the court’s decision. Also, said the High Court, it is not relevant under s.4(2) to enquire as to whether the previous case was correctly decided – though the position might be different if the decision was overturned on appeal, or later overruled.

Duhs & Rao Retained EU Law: A Practical Guide, 2021, at 13.6, suggests different possible interpretations of s.4(2), apart from the government’s, and says it remains to be seen how domestic courts will interpret “of a kind”. It illustrates one suggested possibility with the example that a right not to be discriminated against on the ground of sex might be said to be “of a kind” with a right not to be discriminated against on the ground of age.

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.

Links

As well as the links above:

20th anniversary of stammeringlaw, 1999-2019