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.

—————————————————————————————————————–

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)

[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)