Brexit Freedoms Bill – are EU equality laws at risk?

Recent articles in mainstream media, some of which from well known ‘reliable’ sources, have suggested that certain EU derived employment rights, and in particular equality laws, were at risk of being scrapped at the end of December 2023 when the Retained EU Law (Revocation and Reform) Bill is expected to come into effect. Indeed, these same sources explained how protections such as pregnancy and maternity rights, the right to equal pay, and the right not to be discriminated against, would need to be ‘reinstated’.  

But how true is this? Did the Government really have to take action to protect fundamental workers’ rights from being scrapped overnight? Unsurprisingly, the answer to this question is no.  As can often be the case, these reports were sensationalised to attract readers. 

So, what is the true position?

Following the Brexit vote, The European Union (Withdrawal) Act 2018 was introduced as a means to preserve the ‘status quo’ during a period of ‘transition’. It was anticipated that during the transition period, the UK and the EU would negotiate the terms of their relationship post Brexit, whilst all existing EU laws remained in place.  This included laws (amongst others) relating to workers’ rights.  This ‘frozen’ EU law was given a special status (meaning it could not be easily changed or replaced) and became known as ‘EU Retained Law’. 

In September 2022, the Government introduced the EU Law (Revocation and Reform) Bill.  This Bill received Royal Assent in June 2023, and was largely in force by the end of August 2023.  The Bill (commonly referred to as the ‘Brexit Freedoms Bill’) sought to remove the ‘special status’ of EU Retained Law by the end of December 2023, making it easier to restate, replace or revoke EU laws. 

Contrary to what has been reported in the media, the so-called “Brexit Freedoms Bill” does not automatically scrap EU law (rather just makes it easier to restate, replace or revoke it).  What this means is that EU law (including workers’ rights and equality laws), remain in place and will be preserved as ‘assimilated law’ unless revoked.  So, we can all breathe a sigh of relief and hopefully take some reassurance from the fact that maternity, equal pay, and other anti-discrimination laws are not and were not at risk of being binned at the end of the year.     

 

What changes are on the cards?

Equality Act

While the Brexit Freedom’s Bill does not seek to scrap existing EU derived legislation, it does put an end to the supremacy of EU case law decisions over the UK courts.  In order to ensure that key EU legal judgments remain valid, the Government has recently published The Equality Act 2010 (Amendment) Regulations 2023, which will come into force on 1 January 2024. These Regulations will enhance existing discrimination protection by codifying certain important EU case decisions into UK legislation – so quite the opposite of equality protections being scrapped.

The Regulations will preserve:

• The ‘single source’ equal pay comparison test, which was established in the European Court of Justice in Lawrence and ors v Regent Office Care Ltd and ors 2003 ICR 1092. The Regulations will introduce a new subsection into s79 of the Equality Act, which will enable equal pay claimants to compare themselves with people employed by a different entity where there is a ‘single source’ responsible for determining terms and conditions of employment;
• the right of individuals to bring indirect discrimination by association. The right to bring this kind of claim was recognised in a ECJ case, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia 2015 IRLR 746. In that case it was held that a person can be protected from indirect discrimination by their association with a protected characteristic, even if they themselves do not hold that characteristic, if they have suffered the same disadvantage as a result of that association.  The Regulations will preserve the effect of that ruling by including a new provision into s19 of the Equality Act;
• expand the definition of ‘disability’ which came from the ECJ case of HK Danmark v Dansk almennyttigt Boligselskab and another 2013 ICR 851. The Regulations will seek to introduce a new paragraph into the Equality Act, which will clarify that reference to a person’s ability to carry out normal day to day activities will be taken as including a reference to the person’s ability to participate fully and effectively in working life, on an equal basis with other workers, making it easier to establish a disability; and
• protections for persons breastfeeding, by including a provision which states less favourable treatment on the grounds of breastfeeding, will constitute direct discrimination on the grounds of sex. Other protections that will be preserved include the right for women not to be treated unfavourably following a return from maternity leave, where that treatment is in connection with the pregnancy or pregnancy related illness occurring before their return, and also the right to not be discriminated against on the grounds of pregnancy and maternity in the workplace where they have an entitlement to maternity leave.

 

Working Time Regulations and Transfer of Undertakings (Protection of Employment) Regulations

In addition to the changes to the Equality Act, the Government has also signalled its intention to make amendments to the Working Time Regulations and the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). Earlier this month the Government laid down draft regulations (referred to as The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023), which seek to make changes to these. The Regulations are in draft form for now and need Parliamentary approval before being enacted.

In respect of TUPE, the requirement for employers to elect employee representatives for the purpose of TUPE consultations for a) businesses with fewer than 50 employees and b) where the transfer involves the transfer of fewer than ten employees, would be removed. In these situations, businesses would be able to consult directly with employees – provided there are no existing employee representatives in place.

Proposed changes to the Working Time Regulations include:

• Amending the definition of ‘normal remuneration’ for the purposes of holiday pay, so that it includes commission payments and other payments, such as regular overtime; and
• simplifying holiday pay calculations by making rolled-up holiday pay lawful for part-year workers, and those that work irregular hours…essentially meaning employers will be able to return to adding 12.07% of pay in respect of rolled up holiday pay, as many employers did before the recent decision in Harpur Trust; and
• stating the circumstances where employees can carry over annual leave, and how much they can carry over into the next year (based on existing EU derived principles); and
• removing the requirement for employers to keep a detailed record of working hours and breaks for all staff, provided they are able to demonstrate compliance with the Working Time Regulations without doing so.

 

Future changes to employment legislation 

Over the next few years, we could see the UK government making changes to other EU-derived employment legislation (to the extent that they are impacted by EU law) which have been particularly unpopular and troublesome for UK business:

• Agency Workers Regulations
• Part-time Workers Regulations
• Fixed term Employees Regulations
• Health & Safety regulations
• Information & Consultation of Employees Regulations

For now, we keep our beady eyes open for any reforms to come. 

 

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