Impact of Brexit on UK Equality Law

The United Kingdom Parliament is presently conducting a number of inquiries in order to gather evidence on the impact of ‘Brexit’ on the domestic legal framework.

The Women and Equalities Select Committee in the House of Commons has requested that you submit a brief report.  The purpose is to inform discussions on the likely implications of the UK’s withdrawal from the European Union for equality protection within the UK. 

Some members of the Select Committee are of the view that it is only in the area of gender equality that the EU has had any meaningful impact.  These members have been quoted as saying that “the EU’s foray into other areas of equality was only for show.” 

The Chair has requested, therefore, that your report addresses the contention that EU equality law gives greater protection to those who experience discrimination on grounds of gender than to those who experience discrimination on other grounds.

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Introduction

Discrimination is the ‘unjust or prejudicial treatment of people, especially on the grounds of race, age, sex, religion or disability’. This report will address Brexit’s impact on UK equality law, and whether greater protection is given to gender discrimination issues.

Equality has been a key competence at the European level since the Treaty of Rome enshrined the principle that ‘men and women should receive equal pay for equal work’, which is now Art.157 of the Treaty on the Functioning of the European Union (TFEU).[1] The economic and social aim of it was recognised by the Court of Justice (ECJ)[2], as was the principle of equal treatment and non-discrimination[3].This Treaty provision was also the marginal beginning for the development of the concept of gender equality.

Gender

Sex is broadly construed, with the ECJ interpreting that transsexuality and gender reassignment are included in the concept of sex.[4] Currently there are several Directives addressing gender equality that are in force, and seven of them were recast and consolidated in the Recast Directive[5].

Women often faced sexual discrimination in workplaces. Early cases of unfavourable working conditions for part-time workers, were usually related to women[6].They are now largely covered by the Part-Time Workers Directive[7], which aims to equalise terms and conditions between part-time and full-time workers.

The issues relating to maternity leave and pregnancy were the core focus of the Equal Treatment Directive[8] and Pregnant Workers Directive[9] (the latter primarily aimed at improving health and safety at work)[10]. Directive 76/207/EEC was ‘one of the foundation stones of EU law and policy in the area of gender equality’[11], and now part of the Recast Directive.

Art.2(2)(c)[12] prohibits less favourable treatment of women in issues of maternity leave and pregnancy, which has been generously prohibited by the ECJ over the years. It held that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex.[13] Based on these discussions, we can indeed see that the EU gives great protection to gender issues.

Despite positive progress being made, the ECJ’s ruling demonstrated a limited approach. This is seen where it held that treatment for IVF ‘directly affects women only’[14], which was criticised for fundamentally disregarding the importance of both parents in IVF.[15]

Non-Gender

In 1999, through the Treaty of Amsterdam, the EU’s competence in the equality field widened significantly through the inclusion of Article 13 EC (now Article 19 TFEU). One of the key legislation adopted under Article 19 is the ‘Framework Directive’ (FD)[16], which prohibits discrimination towards sexual orientation, religious belief, age, and disability in employment.

For age discrimination, the major legal step before Art.19 TFEU that had an impact on older workers was the ECJ’s ruling, where occupational pension schemes were concerned, it was unlawful to have different retirement ages for men and women.[17] In later years when the FD was implemented, the ECJ ruled that that EU law encompassed an (independent) general principle of non-discrimination on grounds of age which might have some form of horizontal application.[18]

It has been admitted that there are wider range of justifications on age discrimination compared to other grounds like sex.[19] The FD allows for Member States to justify different treatments on grounds of age as non-discriminatory if it can ‘objectively and reasonably justified by a legitimate aim’[20], with a non-exhaustive list of typical justifications found in Art.6(2)[21]. This shows that age discrimination can be justified under looser standard compared to gender discrimination[22], which shows again that greater protection given to the gender ground. States with pensions crisis whereby it is unlikely that sufficient funds are available for retired persons may also be a factor for looser standards.[23]

The ‘Race Directive’ (RD)[24] was also adopted under Art.19 TFEU, which outlaws discrimination on grounds of racial or ethnic origin. Although Art.2(2)(a)[25] states that direct discrimination requires a person to have been treated less favourably than another, the ECJ ruled that a public statement by an employer that he would not recruit employees of certain ethnic or racial origin constituted direct discrimination as well.[26]

Although the ground of race is prioritised in that the scope of the Directive is broad, the ground of gender has a more solid basis in the Treaty, and has been the subject of a range of legal measures, and also a more defined body of ECJ case laws.

Brexit’s Impact on UK Equality Law

The Scottish Human Rights Commission published a report that reflected the general concern that Brexit will result in the loss of protection when the Charter ceases to be binding on the UK when it leaves the EU.[27]  On this, Dr.Lock noted that if the Charter does cease to apply in the UK, there will be less legal constraints faced by the UK Parliament when making laws.[28] However, the UK still has the Equality Act 2010, which incorporates a range of EU Directives, and at times, has gone further than the Directives require. Also, as Professor Barnard stated, it would be difficult to repeal protection from discrimination on some grounds as these would be “politically sensitive”.[29]

Conclusion    

In concluding this report, it is clearly shown that EU law gives greater protection to discrimination on gender grounds as opposed to non-gender grounds and it has been suggested that Brexit will have no immediate impact on primary legislation unless the UK government decides to make a change[30], which would most certainly be met with resistance from the general public and voters[31].

BIBLIOGRAPHY

Primary Legislation

• Charter of Fundamental Rights of the European Union [2012] OJ C326/391
• Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47
• Treaty of Amsterdam [1999] OJ C340/1 
• Treaty establishing the European Economic Community, EEC Treaty 1958 (not published)

Secondary Legislation

• Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ L 39/40, 14.2.1976
• Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/ 391 /EEC), OJ L 348/1, 28.11.1992
• Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, OJ L 14/9, 20.1.1998
• Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22, 19.07.2000
• Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303/16, 02.12.2000
• Council Directive 2006/54/EC of The European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204/23, 26.7.2006

Table of Cases

• Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889
• Case 170/84 Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607
• Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV [2008] ECR I-5187
• Case 43/75 Defrenne (No 2) v Sabena [1976] ECR 455
• Case 149/77 Defrenne (No.3) v Sabena [1978] ECR 1365
• Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen [1990] ECR I-3941
• Case 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911
• Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143
• Case 506/06 Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] ECR I-1017

Books

• Barnard C and Peers S, European Union Law (OUP, 2014)
• Chalmers D, and Davies G, and Monti G, European Union Law (3^rd edn, CUP 2014)

Secondary Sources

• Barnard C, ‘Impact of Brexit on the Equality Agenda Inquiry’ (14 September 2016) HC 657
• <https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2015/impact-of-brexit-on-equalities-agenda-16-17/> (accessed 25 March 2017)
• Busby N and James G, ‘Regulating working families in the European Union: a history of disjointed strategies’ [2015] 37(3) J. Soc. Wel. & Fam. L 295
• Georghiou N and Evans A, ‘Brexit: the impact on equalities and human rights’ (26 October 2016) Scottish Parliament Information Centre Briefing SB 16-82
• <http://www.parliament.scot/ResearchBriefingsAndFactsheets/S5/SB_16-82_Brexit-the_impact_on_equalities_and_human_rights.pdf> (accessed 25March 2017)
• Lock T, ‘The Human Rights Implications of the European Union Referendum’ (26 May 2016) Scottish Human Rights Commision
• <http://www.scottishhumanrights.com/news/commission-publishes-paper-on-human-rights-implications-of-eu-referendum/> (accessed 27 March 2017)
• Lyonette C, ‘Part-time work, work-life balance and gender equality’ [2015] 37(3) J. Soc. Wel. & Fam. L 321
• Masselot A and Caracciolo di Torella E and Burri S, ‘Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood’ (November 2012)
• <http://ec.europa.eu/justice/gender-equality/files/your_rights/discrimination__pregnancy_maternity_parenthood_final_en.pdf> (accessed 29 March 2017)
• Russell K and Maclean N, ‘Brexit Analysis Bulletin: Employment, Immigration, & Human Rights’ (29 March 2016) Shepherd and Wedderburn <https://www.shepwedd.co.uk/sites/default/files/Employment_PostRef_Brexit.pdf> (accessed 29 March 2017)
• Schiek D, ‘Age Discrimination Before the ECJ – Conceptual and Theoretical Issues’ [2011] 48(3) CML Rev. 777
• Scottish Human Rights Commission, ‘Protecting human rights in Scotland in a changing relationship with Europe’ (26 May 2016)
• <http://www.scottishhumanrights.com/media/1055/16_05_26_eureferendumstatement2.docx> (accessed 28 March 2017)

Electronic Sources

• Cope A, ‘The Brexit Connundrum: The Brexit Conundrum: What would an ‘out’ scenario mean for UK employment law?’ (12 January 2016)
• <http://www.olswang.com/articles/2016/01/the-brexit-conundrum-what-would-an-out-scenario-mean-for-uk-employment-law/> (accessed 29 March 2017)

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[1] Georghiou and Evans (2016).

[2] Case 43/75 Defrenne (No 2) [1976] ECR 455.

[3] Case 149/77 Defrenne (No.3) [1978] ECR 1365.

[4] Case C-13/94 P v S [1996] ECR I-2143.

[5] Directive 2006/54/EC.

[6] Case 96/80 Jenkins [1981] ECR 911 and Case 170/84 Bilka-Kaufhaus [1986] ECR 1607.

[7] Directive 97/81/EC.

[8] Directive 76/207/EEC.

[9] Directive 92/85/EEC.

[10] Masselot, Caracciolo di Torella and Burri (2012, p.2).

[11] Ibid, p.4.

[12] Recast Directive 2006/54/EC, Art.2(2)(c).

[13] Case C-177/88 Dekker [1990] ECR I-3941.

[14] Case 506/06 Sabine Mayr [2008] ECR I-1017.

[15] Busby and James (2015).

[16] Directive 2000/78/EC.

[17] Case C-262/88 Barber [1990] ECR I-1889.

[18] Barnard and Peers (2014, p.618).

[19] Schiek (2011).

[20] Art.6(1) of Directive 2000/78/EC.

[21] Ibid, Art.6(2).

[22] Schiek (2011).

[23] Chalmers, Davies, and Monti (2014).

[24] Directive 2000/43/EC.

[25] Ibid, Art.2(2)(a).

[26] Case C-54/07 Firma Feryn [2008] ECR I-5187

[27] Scottish Human Rights Commission (2016)

[28] Lock (2016)

[29] Barnard (14 September 2016, Q.6)

[30] Russell and Maclean (2016)

[31] Cope (2016)