{"id":436,"date":"2019-03-29T11:13:28","date_gmt":"2019-03-29T11:13:28","guid":{"rendered":""},"modified":"2019-06-07T12:45:40","modified_gmt":"2019-06-07T12:45:40","slug":"impact-brexit-uk-equality-law-3938","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/european-law\/impact-brexit-uk-equality-law-3938.php","title":{"rendered":"Impact of Brexit on UK Equality Law"},"content":{"rendered":"

The United Kingdom
\nParliament is presently conducting a number of inquiries in order to gather
\nevidence on the impact of \u2018Brexit\u2019 on the domestic legal framework.<\/p>\n

The Women and Equalities
\nSelect Committee in the House of Commons has requested that you submit a brief
\nreport.  The purpose is to inform
\ndiscussions on the likely implications of the UK\u2019s withdrawal from the European
\nUnion for equality protection within the UK. \n<\/p>\n

Some members of the
\nSelect Committee are of the view that it is only in the area of gender equality
\nthat the EU has had any meaningful impact. 
\nThese members have been quoted as saying that \u201cthe EU\u2019s foray into other
\nareas of equality was only for show.\u201d  <\/p>\n

The Chair has requested, therefore, that your
\nreport addresses the contention that EU equality law gives greater protection
\nto those who experience discrimination on grounds of gender than to those who
\nexperience discrimination on other grounds.<\/strong><\/p>\n

—————————————————————————————————————–<\/strong><\/p>\n

Introduction<\/h2>\n

Discrimination is the \u2018unjust or prejudicial treatment of people,
\nespecially on the grounds of race, age, sex, religion or disability\u2019. This
\nreport will address Brexit\u2019s impact on UK equality law, and whether greater
\nprotection is given to gender discrimination issues. <\/p>\n

Equality has been a key competence at the European level since the
\nTreaty of Rome enshrined the principle that \u2018men and women should receive equal
\npay for equal work\u2019, which is now Art.157 of the Treaty on the Functioning of
\nthe European Union (TFEU).[1]<\/a> The
\neconomic and social aim of it was recognised by the Court of Justice (ECJ)[2]<\/strong><\/em><\/a>,
\nas was the principle of equal treatment and non-discrimination[3]<\/strong><\/em><\/a>.This
\nTreaty provision was also the marginal beginning for the development of the
\nconcept of gender equality. <\/p>\n

Gender<\/h2>\n

Sex is broadly construed, with the ECJ interpreting that
\ntranssexuality and gender reassignment are included in the concept of sex.[4]<\/a> Currently
\nthere are several Directives addressing gender equality that are in force, and
\nseven of them were recast and consolidated in the Recast Directive[5]<\/a>.<\/p>\n

Women often faced sexual discrimination in workplaces. Early cases of
\nunfavourable working conditions for part-time workers, were usually related to
\nwomen[6]<\/a>.They
\nare now largely covered by the Part-Time Workers Directive[7]<\/a>, which
\naims to equalise terms and conditions between part-time and full-time workers. <\/p>\n

The issues relating to maternity leave and pregnancy were the core
\nfocus of the Equal Treatment Directive[8]<\/a>
\nand Pregnant Workers Directive[9]<\/a> (the
\nlatter primarily aimed at improving health and safety at work)[10]<\/a>.
\nDirective 76\/207\/EEC was \u2018one of the foundation stones of EU law and policy in
\nthe area of gender equality\u2019[11]<\/a>,
\nand now part of the Recast Directive. <\/p>\n

Art.2(2)(c)[12]<\/a>
\nprohibits less favourable treatment of women in issues of maternity leave and
\npregnancy, which has been generously prohibited by the ECJ over the years. It held
\nthat discrimination on grounds of pregnancy constitutes direct discrimination
\non grounds of sex.[13]<\/a> Based
\non these discussions, we can indeed see that the EU gives great protection to
\ngender issues.<\/p>\n

Despite positive progress being made, the ECJ\u2019s ruling demonstrated a
\nlimited approach. This is seen where it held that treatment for IVF \u2018directly
\naffects women only\u2019[14]<\/a>, which
\nwas criticised for fundamentally disregarding the importance of both parents in
\nIVF.[15]<\/a> <\/p>\n

Non-Gender<\/h2>\n

In 1999, through the Treaty of Amsterdam, the EU\u2019s competence in the
\nequality field widened significantly through the inclusion of Article 13 EC
\n(now Article 19 TFEU). One of the key legislation adopted under Article 19 is
\nthe \u2018Framework Directive\u2019 (FD)[16]<\/a>,
\nwhich prohibits discrimination towards sexual orientation, religious belief,
\nage, and disability in employment. <\/p>\n

For age discrimination, the major legal step before Art.19 TFEU that
\nhad an impact on older workers was the ECJ\u2019s ruling, where occupational pension
\nschemes were concerned, it was unlawful to have different retirement ages for
\nmen and women.[17]<\/a>
\nIn later years when the FD was implemented, the ECJ ruled that that EU law
\nencompassed an (independent) general principle of non-discrimination on grounds
\nof age which might have some form of horizontal application.[18]<\/a> <\/p>\n

It has been admitted that there are wider range of justifications on
\nage discrimination compared to other grounds like sex.[19]<\/a> The
\nFD allows for Member States to justify different treatments on grounds of age
\nas non-discriminatory if it can \u2018objectively and reasonably justified by a
\nlegitimate aim\u2019[20]<\/a>,
\nwith a non-exhaustive list of typical justifications found in Art.6(2)[21]<\/a>. This
\nshows that age discrimination can be justified under looser standard compared
\nto gender discrimination[22]<\/a>,
\nwhich shows again that greater protection given to the gender ground. States
\nwith pensions crisis whereby it is unlikely that sufficient funds are available
\nfor retired persons may also be a factor for looser standards.[23]<\/a><\/p>\n

The \u2018Race Directive\u2019 (RD)[24]<\/a>
\nwas also adopted under Art.19 TFEU, which outlaws discrimination on grounds of
\nracial or ethnic origin. Although Art.2(2)(a)[25]<\/a>
\nstates that direct discrimination requires a person to have been treated less
\nfavourably than another, the ECJ ruled that a public statement by an employer
\nthat he would not recruit employees of certain ethnic or racial origin
\nconstituted direct discrimination as well.[26]<\/a> <\/p>\n

Although the ground of race is prioritised in that the scope of the
\nDirective is broad, the ground of gender has a more solid basis in the Treaty,
\nand has been the subject of a range of legal measures, and also a more defined
\nbody of ECJ case laws. <\/p>\n

Brexit\u2019s Impact on UK Equality Law<\/h2>\n

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]<\/a>  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]<\/a> However, the UK still has the Equality Act 2010<\/a>, 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 \u201cpolitically sensitive\u201d.[29]<\/a><\/p>\n

Conclusion     <\/h2>\n

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

BIBLIOGRAPHY<\/h2>\n

Primary Legislation<\/h3>\n