The first thing to make clear is that EU law has not been the sole – and perhaps not the primary – source of discrimination law generally, and sex discrimination law in particular. The Equal Pay Act 1970, one of the earliest modern anti-discrimination statutes, was provoked by the UK’s impending membership of what was then the EEC, and many subsequent amendments to UK sex discrimination law resulted from EU legislation or decisions of the CJEU (as it is now). But the Sex Discrimination Act 1975 was not driven by any EU imperative, having been preceded by Conservative proposals concerned to widen the range of opportunities open to women and to challenge unfair sex discrimination in areas such as employment and training. In its final form the Labour government’s 1975 Act owed more to the model which had developed under the Race Relations Acts of 1965 and 1968 and developments in the US in the 1970s than it did to Europe, although it became the vehicle in Britain for the transposition of the Equal Treatment Directive and was subject to many express amendments to this end. Neither that Directive nor any subsequent gender equality directive has matched the material reach of the 1975 Act which prohibited sex discrimination not only in employment (broadly defined to include vocational training and access to self-employment, trade union membership, etc) but extended, inter alia, to education, housing and the provision of goods, facilities and services.
Underpinning of rights
EU membership has, however, been extremely influential in relation to a number of matters, among them the right to equal pay for work of equal value and to protection from discrimination related to pregnancy, also to questions of enforcement. The ECJ (as it then was) required the amendment of the Equal Pay Act to cover equal pay for work of equal value, and interpreted sex discrimination to include discrimination related to gender reassignment. It prohibited differential retirement ages for men and women and the application of any cap on compensation for discrimination. A large number of cases developed the right to equal pay for work of equal value, and applied it to women working part-time. Others applied the prohibition on gender-related pay to occupational pensions and insisted that pregnancy discrimination amounted to sex discrimination.
These decisions all proved to be of substantial, and some of them of profound, importance to domestic law. Domestic discrimination law is now consolidated in Great Britain (though not Northern Ireland) into the Equality Act 2010 which regulates discrimination, victimisation and harassment because of sex, pregnancy and maternity and gender reassignment as well as race (broadly defined), sexual orientation, marriage and civil partnership, religion or belief, age and disability across a range of activities including employment, education, public functions, membership organisations and the provision of goods, facilities and services.
It is not inevitable, and indeed is unlikely, that Brexit will cause the edifice of domestic equality law to crumble. It is true, however, that Brexit will remove from domestic equality legislation the underpinning provided by EU law both in its current form and with the benefit of any future developments. This may well prove of increasing significance given the general hostility of many of those on the right to ‘red tape’ and the ‘compensation culture’. Certainly the prohibitions on discrimination in relation to pregnancy and maternity in particular impose ‘burdens on business’, as do restrictions on indirect discrimination related to sex.
Recent legal developments
Governments since 2010 have not introduced radical changes to substantive domestic equality law, though this may have been the result between 2010 and 2015 of the Liberal Democrats’ relative enthusiasm for equality legislation. A number of the innovations contained in 2010 Act have been scrapped, however, among them the regulation of ‘dual discrimination’ and the protection of workers from third party harassment (including sexual harassment). Mandatory gender pay audits have not been introduced, except in some cases following a finding of gender pay discrimination; in 2014 the UK for the first time, the World Economic Forum’s Global Gender Gap Report ranked the UK outside the world’s 20 most gender-equal countries (lagging behind Nicaragua, Rwanda, the Philippines, Bulgaria and Burundi as well Iceland, Finland, Norway, Sweden and Denmark) after women’s average wages fell by £2,700 in a year (men’s wages remaining constant).
The matters mentioned immediately above were beyond the scope of EU law and within domestic government’s freedom of manoeuvre. It is not fanciful to suggest that Brexit will result in other amendments to the scope of domestic law. Particularly significant as regards possible future directions of travel have been the changes made in recent years to the enforcement of equality/discrimination law. Discrimination/equal pay questionnaires, which had been in operation since the 1970s, were abolished as of April 2014 notwithstanding an 83% majority against the proposal in responses to the government’s consultation document. Also removed for apparently ideological reasons were employment tribunals’ powers to make recommendations, by way of response to successful discrimination claims, which extend beyond the relationship between claimant and employer. These powers were scrapped as an unnecessary burden on business despite an absence of any evidence (even assertion) of inappropriate use by tribunals, and notwithstanding the fact that only 12% of respondents to the consultation paper were in favour of repeal, with 79% against.
Budget slashing and impact of tribunal fees
Other assaults on enforcement have included the slashing of the EHRC’s budget from £70m in 2007 to under £18m in 2015/16, this despite warnings to then Home Secretary, Theresa May from the UN Commissioner on Human Rights in 2012 that the Commission would lose its financial autonomy, and its UN ‘A’ grade rating, if cuts to its budget continued. And perhaps most importantly, tribunal fees introduced in July 2013 resulted in a spectacular reduction of sex discrimination (and other) tribunal claims, discrimination claims now costing £1,200 to litigate and £1,600 to appeal. Fees may be remitted for claimants on very low incomes, but most claimants will be required to meet them as a condition of the claim. Tribunal claims immediately fell by 64%, sex discrimination and equal pay claims by 83% and 77% respectively. Notably, in view of the assertion by the-then Minister for Education and Business in April 2014 that the 79% drop in tribunal applications to that date demonstrated that blameless employers had previously been subject to many false allegations, the success rate of those claims brought has not changed in the period since fees were introduced.
The introduction of tribunal fees has clearly had a devastating impact on discrimination claims and it is strongly arguable, notwithstanding occasional expressions of support for gay marriage, equality and apple pie, that elements within the Conservative Party are constitutionally ill-disposed towards discrimination legislation. Brexit removes the counter-weight of EU law which has resulted in significant improvements for women in the UK, and which has no doubt prevented regressive steps which would otherwise have been taken. It is the case that attempts to rely on EU law to challenge tribunal fees have failed to date, the High Court (twice) and the Court of Appeal rejecting the argument that their imposition breached the EU principles of effectiveness (by effectively barring access to the court). But any suggestion that, in light of the tribunal fee challenges, that EU membership has proven ineffective in securing effective equality and related rights and that Brexit will make scant difference is premature; the Supreme Court’s decision on tribunal fees is awaited.
Early likely losses
Brexit is likely to do real damage to women. Even leaving aside specific discrimination law, women are disproportionately numbered among the most vulnerable workers, and are likely to be disproportionately affected by the expected bonfire of provisions such as entitlements to paid holiday and to maximum weekly hours and parental leave rights. Brexit also poses a specific threat to any elements of discrimination law which are seen as business-unfriendly. These include equal pay for work of equal value, as well as protection from pregnancy-related discrimination, which is rife. While it is perhaps unlikely that these rights will simply be abolished, the assault which has already been launched on their enforcement is likely to continue with early likely losses, including uncapped damages for discrimination claims and the recoverability of six years’ of back pay by successful equal pay claimants.
Contributor Aileen McColgan is Professor of Human Rights Law at King’s College London and a barrister at Matrix Chambers
SEX DISCRIMINATION RIGHTS REVIEW
Amid fears that Brexit will ‘turn the clock back’ on women’s rights, a review of sex discrimination laws was launched by the Fawcett Society. Its remit includes the effectiveness of current laws and how best to balance the rights of the individual with the responsibilities of the organisation.
Due to report in the autumn, the panel is led by retired High Court Justice, Dame Laura Cox DBE and coordinated by equality law expert Gay Moon. Panel members include a number of QCs and equality law experts. The closing date for evidence was 3 July but late submissions may be sent to Lawreview@Fawcettsociety.org.uk
#FaceHerFuture The Fawcett Society campaign to protect women’s rights post-Brexit is supported by over 20 women’s and equalities organisations.