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Brexit and Equality Act 2010

What are the consequences of Brexit for disability discrimination under the Equality Act? In the referendum on 23rd June 2016, a majority voted in favour of the UK leaving the European Union (EU).

Summary

Equality Act continues even after Brexit

BrexitThe UK currently remains a member of the European Union (see next heading).

However the Equality Act 2010 will continue as it is even after the UK ceases to be an EU member, unless and until the British Parliament amends it. This is because the Equality Act is a British statute, passed by the Westminster Parliament.

The government has said there will be a 'Great Repeal Bill'. This would repeal the European Communities Act 1972 and make EU law into British law, which can then be amended by the British government or Parliament. However, the Equality Act does not need any legislation like this to continue in force after Brexit.

Incidentally, it is worth making the point that Britain introduced disability discrimination law some years before the European Union did. Indeed the EU directive on this was influenced by British law. See below UK disability discrimination law is British in origin.

The UK currently remains part of the EU

The UK currently remains a member of the European Union. It is likely to continue as a member until at least March 2019, two years after the UK gives notice to leave the EU under Article 50. The government intends to give that notice by the end of March 2017.

The reason why EU law has effect in the UK is because the British Parliament has passed an Act of Parliament saying so, namely the European Communities Act 1972. The Westminster Parliament remains sovereign and can amend or repeal this Act whenever it wants. However to repeal the 1972 Act before the UK ceases to be an EU member would presumably be a breach of both EU law and international law. The government intends to have a 'Great Repeal Bill' in place to repeal the European Communities Act 1972 as soon as the UK's membership of the EU ends.

Accordingly at present the UK must still comply with EU discrimination law

Under the European Communities Act 1972, British courts and other bodies currently remain bound by EU legislation, including the Framework Employment Directive on discrimination, and by decisions of the EU Court of Justice. Accordingly, for the time being -

After Brexit: Ability to amend the Equality Act without regard to EU law

It is possible that in Brexit negotiations the UK will agree to be bound by at least some EU laws, for example employment law including the Framework Employment Directive which covers disability discrimination. However, let us assume that this is not agreed.

The UK Parliament will then be entitled to amend (or perhaps repeal) the Equality Act without regard to EU law. The UK would remain legally obliged to comply with the UN Disability Convention (CRPD), but that is less detailed and its enforcement mechanisms are weaker than EU law.

What is likely to happen to the Equality Act after Brexit?

It seems very likely in practice that the Equality Act will continue for the foreseeable future, even after Brexit.

What about amendments? Major changes to the basic principles seem unlikely, at least in the short term. However since the 2010 election there have been various employment law reforms particularly in areas not covered by EU law, for example increasing the qualifying period for unfair dismissal from one to two years. With equality law freed from EU minimum standards, the government (most obviously a Conservative governement) may consider some changes to restrict rights under the Equality Act.

One possible change would be limiting the amount of compensation that can be awarded under the Equality Act. At present there is a statutory limit on compensation for unfair dismissal, but suggestions to do the same for discrimination claims have been blocked by the argument that it would breach European law. A cap on Equality Act compensation would probably mean some claimants no longer being compensated in full for the financial loss they suffer due to unlawful discrimination. This applies particularly to claimants who have suffered long-term damage, or who are in high paid roles, such as the consultant physician in the Michalak case. Link: Cap on discrimination awards (link to yougov.co.uk).

After Brexit: Effect of EU directives and court decisions when interpreting Equality Act

EU directives, and decisions of the EU Court of Justice, have a significant effect on how British courts interpret and apply the Equality Act. On disability discrimination, see for example EU law: 'normal day-to-day activity' is very wide in employment claims.

Assuming the UK is no longer bound by the Framework Employment Directive after Brexit, it is not clear how far EU directives and EU court decisions (and the many British court decisions based on them) will remain relevant in applying the Equality Act - and many other UK laws.

To say that previous cases decided on the basis of EU law are simply no longer valid would lead to substantial problems. For some years no one would know what the legal position is on important areas. The legal uncertainty would create difficulty and expense for both businesses and individuals. Issues would have to be relitigated before the British courts - again creating expense.

The role of EU law and cases in applying UK law after Brexit will need to be settled by legislation (such as the Great Repeal Bill) or by the courts themselves - or probably a mixture of both. It is likely that EU directives and cases (at least pre-existing ones) will remain relevant, but the extent of their role will need to be decided. After all, many British statues - including the Equality Act - were passed by Parliament with the intention that they comply with EU law, so that should be relevant in interpreting them. In any event, it would be recognised that the UK is no longer bound to implement EU law.

The most difficult issue may what happens where under EU law the British courts have in the past - or might in future based on pre-existing EU law - depart from the express wording of a UK statute or regulation in order to comply with the European position, particularly under the Marleasing principle

UK disability discrimination law is British in origin

Though not relevant legally, it's worth bearing in mind that UK disability discrimination law originated in Britain rather than Europe.

Before the Equality Act, UK disability discrimination law was contained in the Disability Discrimination Act 1995 (DDA). The DDA was introduced by the then Conservative government and passed by the Westminster Parliament. William Hague was the Minister piloting it through the House of Commons. There was no European requirement at that time to pass the legislation.

An EU directive on disability discrimination came later, when in 2000 the EU adopted the Framework Employment Directive. This set minimum standards with which the disability discrimination law of member states must comply. The directive was passed unanimously by the Council of Ministers, so the UK agreed to it. The directive required certain changes to the DDA, which took effect in 2004. The point has been made that a great deal of the development of EU disability discrimination law was directly influenced by Britain's DDA, and by personnel who had worked in the UK on disability and then took that expertise to the EU (Evidence to House of Commons Women and Equalities Committee, 14th Sept 2016, at Q2).

When Parliament consolidated British discrimination law by passing the Equality Act 2010, further changes were made to reflect EU law, partly as a result of the Coleman decision by the EU Court of Justice. The Equality Act brought together into one place the DDA and other anti-discrimination legislation, such as that relating to sex and race, whilst also making various changes to the law.

The Equality Act would quite likely have been passed with or without the EU - though some of its provisions may well have been different without the EU as the UK would not have been obliged to meet the requirements of the Framework Employment Directive. Also EU court cases have been relevant in interpreting the Equality Act - see above Effect of EU directives and court decisions when interpreting Equality Act.

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Last updated 2nd January, 2017