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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). In March 2017 the UK government gave notice of intention to leave the EU under 'Article 50'.
The 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': see The Great Repeal Bill: White Paper (link to gov.uk), 30th March 2017. This Bill will repeal the European Communities Act 1972 and make EU law into British law, which can then be amended by the British Parliament or government.
However, the Equality Act does not need legislation like this to continue in force after Brexit, since it is already a British law. In any event, para 2.17 of the White Paper, in Example 1, expressly says that all the protections covered in the Equality Act 2010 and equivalent Northern Ireland legislation will continue to apply once the UK has left the EU.
Incidentally, Britain introduced disability discrimination law some years before the European Union did. Indeed the EU directive on it was influenced by British law. See below UK disability discrimination law is British in origin.
The UK currently remains a member of the European Union. Notification under Article 50 was given on 29th March 2017. Article 50 provides that unless otherwise agreed, the member state leaves the EU two years after the notification is given. Accordingly the UK will remain a member of the EU until March 2019 at which point it leaves, unless there is agreement to the contrary. (This assumes the UK does not seek to revoke the notification.)
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 'Great Repeal Bill' will therefore repeal the European Communities Act 1972 'on the day we leave the EU' (The Great Repeal Bill: White Paper (link to gov.uk), in the Foreword by David Davis).
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 -
Looking at government statements one would think it unlikely that in negotiations the UK will agree to remain bound by EU employment laws after it leaves, such as the Framework Employment Directive which covers disability discrimination. The emphasis is that the UK will be 'free' of EU law and the jurisdiction of the EU Court of Justice as soon as it leaves. Even so an agreement for some continuing compliance with EU law remains possible depending on what is negotiated, for example during an 'implementation' or 'transitional' period if there is one. However let us assume that the UK does not agree to continue complying with EU discrimination law after it ceases to be an EU member.
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.
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 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. When equality law no longer has to meet 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 to limit the amount of compensation that can be awarded under the Equality Act. At present there is a statutory limit on compensation for unfair dismissal. Suggestions to do the same for discrimination claims have been blocked by the argument that it would breach EU law. If a cap on Equality Act compensation is introduced, this would probably mean some claimants no longer being compensated in full for the financial loss they suffer due to unlawful discrimination. That applies particularly to claimants who have suffered long-term damage (eg long-term mental illness restricting their employment prospects), 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).
These seem unlikely to be relevant for disability discrimination law under the Equality Act.
Normally an Act of Parliament is needed to change a statute. However due to the volume of changes required by Brexit, the government proposes that the Great Repeal Bill will include a power for the government to pass regulations to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU. The regulations would be open to scrutiny by Parliament,.
The Great Repeal Bill: White Paper (link to gov.uk) makes clear this power will need to be constrained. Para 3.17 says: 'Crucially, we will ensure that the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU derived law arising out of our exit from the EU.'
It is difficult to see how any changes to disability discrimination law would be required to correct problems from leaving the EU.
Decisions of the EU Court of Justice, and EU directives, currently have a significant effect on how British courts interpret and apply the Equality Act.
The Great Repeal Bill: White Paper (link to gov.uk), from para 2.12, proposes that after we leave the EU 'EU-derived law' will have to be interpreted by reference to case law of the EU court as it exists on the day we leave the EU. This is to maximise certainty of what the law means in the UK, by providing for continuity in how the law is interpreted before and after exit day.
It is not quite clear whether the Equality Act will be within the Great Repeal Bill's definition of 'EU-derived' law. However it would very much make sense for this rule to apply to statutes such as the Equality Act so far as they give effect to an EU directive, since the UK courts have so far had to interpret these statutes in accordance with decisions of the EU court. Applying the new rule to these statutes is how best to provide 'certainty', which the Prime Minister says in the White Paper is the Government's first objective so far as possible.
Assuming the rule does apply to the Equality Act, a few points on it:
It seems likely that the British courts would even be allowed to depart from the express wording of an EU-derived British statute or regulation (particularly under the Marleasing principle) in order to comply with an EU court decision issued before Britain leaves the EU. This would be consistent with providing certainty by avoiding a sudden change in meaning of a UK statute on exit day.
Even if the Equality Act did not fall within the wording of this rule in the Great Repeal Bill, it seems likely that the UK courts would take account of EU court decisions anyway.
However it is not clear what force the EU court decisons would have. Particularly it is not clear whether they would be followed where they involve departing from the wording of the UK legislation. This can happen in the above example of what is a 'normal day-to-day activity' within the Equality Act.
The position is less clear here. After exit from the EU, will a UK court interpreting EU-derived legislation be bound by the relevant EU directive where there is no EU court decision on the particular point? This is not addressed in the White Paper. However I'm not sure it's that important anyway as regards the Equality Act at least.
In practice, it seems likely that UK courts will at least have regard to the wording of EU directives in interpreting UK legislation which was intended to be consistent with them.
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 31st March, 2017