Discrimination law after Brexit

Brexit, theoretically at least, allows a Government to consider removing or modifying equality legislation currently in force in the UK.

Brexit, theoretically at least, allows a Government to consider removing or modifying equality legislation currently in force in the UK.

Wholesale repeal looks unlikely, especially given the UK’s strong record of legislating against discrimination. Alternatively it is possible that the Government may consider making changes in discrete areas such as, the current protection afforded to agency workers or the remedies currently available under UK law by introducing a cap in relation to discrimination compensation.

A 'pioneer' of discrimination law

At this point, it is worth having a short history lesson to explain how the UK has arrived at its current position in terms of discrimination legislation. Before the New Labour government of 1997, which implemented the EU Social Charter (more on this later), the UK had four pieces of discrimination legislation, namely: the Equal Pay Act 1970; the Sex Discrimination Act 1975; the Race Relations Act 1976; and the Disability Discrimination Act 1995. The UK was very much the pioneer in the EU when it came to discrimination legislation as it had legislation on race and disability discrimination well before the rest of the EU.

The Maastricht Treaty and the EU Social Charter

In 1991, the then twelve EU member states signed the Maastricht treaty. Prior to this treaty, the EU was solely concerned with having a single market. However, as a result of this treaty, it added two new areas – ‘justice and home affairs’ and a ‘common foreign and security policy’ - and the so-called ‘three pillars’ of the EU were established. Since then a fourth pillar, the controversial freedom of movement of people has been added.

During the Maastricht treaty negotiations our then Prime Minister, John Major, famously (well for those of us of a certain age) negotiated the so called ‘opt-out’ which meant that the UK was not required to introduce legislation dealing with the integration of employment and social issues under the so called Social Charter (which included a requirement for member states to comply with various employment related matters).

However, in 1997, the New Labour Government decided to opt-in to the Social Charter. As a consequence, the UK was required to implement into UK law the Working Time Directive and regulations preventing discrimination against part-time workers and fixed term employees. More recently it also meant that the Government had to implement the Agency Workers Directive, which made it unlawful to discriminate against agency workers. 

The Equal Treatment Directive 2000

Prior to this Directive coming into force, the EU only had legislation covering sex discrimination and equal pay. This Directive also made it unlawful to discriminate because of sex, race, disability, religious or philosophical belief, sexual orientation and age (‘the protected characteristics’). As a consequence, between 2003 and 2006, the UK introduced domestic regulations ‘outlawing’ discrimination because of religious or philosophical belief, sexual orientation and age.

The Equality Act 2010

There were so many different pieces of discrimination legislation in force in the UK, each with slightly differing wording (which also raised doubts about whether the UK had properly implemented the Equal Treatment Directive), it was felt legislation on the ‘protected characteristics’ needed to be in one place. As a consequence, the Equality Act was passed.

Comment

Nigel Farage stated last year to Trevor Phillips (the former Equality and Human Rights Commission chief) that “we are colour-blind” apparently playing down the importance of discrimination law (especially race discrimination law) in the UK.He went on to say that concern about race discrimination “would probably have been valid 40 years ago but that is no longer the case”.

However, despite these remarks, there is unlikely to be any real appetite to repeal the Equality Act. The upsurge of race-related incidents in the immediate aftermath of the ‘leave’ vote certainly suggests that the UK is not in a position to ‘do away’ with discrimination law.

A repeal of the Equality Act 2010 would be highly controversial and unlikely to have much, if any, cross party political support. In these very fast moving times however, who knows if this will remain the case!

A cap on compensation?

However, the Government may seek to introduce a cap on the amount of compensation in discrimination cases.

The removal of a cap in discrimination cases dates back to the 1990s and a decision of the European Court of Justice Marshall v Southampton and South West Hampshire AHA where the ECJ held: ‘Compensation had to be adequate in that it had to enable the loss and damage actually sustained as a result of a discriminatory dismissal to be made good in full in accordance with applicable national rules….’.  

There have been mutterings from some in the Conservative Party for some time that they would like to impose a cap in discrimination cases, but were prevented from doing so by the ECJ. Such comments are probably fuelled by headlines showing some claimants being awarded multi-million pound pay-outs.

However, these headlines are atypical. Average compensation awards made by Employment Tribunals in discrimination cases in 2014 ranged from £1,080 (religious discrimination claims) up to £23,478 (sex discrimination claims). In the broad scheme of things these are relatively modest amounts.

Repeal of the Agency Workers Regulations?

Brexit, once implemented, could mean that the UK would no longer have to comply with the Social Charter and so could, in theory, choose to dispense with regulations protecting atypical workers (see Louise Singh’s article on what happens to employment law generally for more detail).

The regulations making it unlawful to discriminate against part time workers and fixed term workers have proved to be relatively uncontroversial. There is therefore probably not much political appetite to change or repeal them.

However, the same cannot be said about the Agency Workers Regulations. The CBI was not in favour of their introduction, stating 12 months later that “…one year on from the introduction of the regulations, the business verdict is that they are a drag on job creation…”.  Accordingly, it is conceivable that these regulations could be in the firing line for repeal (or non-reimplementation) by a Government that wants to portray itself as pro-business.

Conclusion

As with all things Brexit, we have nothing concrete to work with at present. Once implemented, Brexit will give the Government scope to make changes to discrimination law.

Whether the Government will want to make such changes will be dependent upon political will for change. I suspect if there are any changes, they will not be anytime soon, not least because this Government is likely to have ‘bigger fish to fry’. 

Paul McFarlane, (paul.mcfarlane@weightmans.com) is a Partner in Weightmans LLP, Employment, Immigration and Pensions team based in its London office. He is also chair of the Employment Lawyers Association’s Legislative & Policy Committee. If you have any questions please get in touch with Paul or speak to your usual Weightmans contact.

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