Equality law: the implications of Brexit and union priorities

Equality law: the implications of Brexit and union priorities Sally Brett TUC Senior Policy Officer Pre-Brexit climate for equality bargaining Findings from TUC Equality Audit 2016 In the past two years has it become more or less difficult to get employers to address equality issues in the workplace? Stayed the same;

32.00% More difficult; 53.00% Less difficult; 15.00% Equality grievances still widespread in workplaces

Three-quarters of union reps said they had dealt with issues from members related to discrimination or one of the protected characteristics in past two years 60% 50% 40% 30% 20% 10% 0% Racism and the referendum

Rise in reported race hate crime after Brexit vote Rise of 49% in July 2016 compared to previous year But wider political context and government policy impacts too In recent years there has been a rise in people describing themselves as prejudiced towards those of other races in British Social Attitudes Survey after years of decline Referendum emboldened those with racist views Support for equality rights post-referendum EU-guaranteed protections should remain Voters supported maintaining protections from discrimination post-Brexit (80% of remain voters and 77% of leave voters)

More want UK to be an open and tolerant country 51% of voters said they want Britain to be a tolerant country where people of different cultures have equal rights Nearly two-fifths felt that Britains efforts to accept other cultures has gone too far and this is a chance to take our country back (including 20% of remain voters) EU influence on UK equality law (1) Sex, race and disability discrimination UK had legislation in place before EU required it but EU law expanded and strengthened rights, e.g.: - Right to equal pay for work of equal value

- Uncapped compensation in discrimination cases - Protection from pregnancy and maternity discrimination - Protection from discrimination because of gender reassignment - End to small business exemption in Disability Discrimination Act - Wider protections from associative discrimination and harassment EU influence on UK equality law (2) Sexual orientation, religion or belief and age legislation EU Framework Equal Treatment Directive resulted in protections from discrimination being adopted for the first time in UK Since then UK has gone beyond EU minimum and extended protections beyond workplace in Equality Act 2010

Other relevant rights Maternity and family-leave rights UK could miss out on proposed improvements at EU level to enhance fathers leave rights, strengthen protection from dismissal for pregnant women and new mothers and introduce carers leave Rights to equal treatment for part-timers, agency workers, working time rights and TUPE protections all important to women, young workers and BME workers Access to European Court of Justice ECJ has given strong and purposive interpretations of equality rights Big impact on sex discrimination and equal pay where EU law has been

in place longest - It is difficult to overstate the significance of EU law in protecting against sex discrimination. The ECJ has repeatedly acted to correct decisions of the domestic courts that were antithetical to female workers rights Michael Ford QC If no longer required to comply with EU law then UK courts could begin to diverge and settled principles could be re-litigated Indirect discrimination and reasonable adjustment duty interpretations are vulnerable UK courts drift towards direct discrimination approach Equal pay vulnerable as case law heavily influenced by direct Political risks to rights post-Brexit

Attitudes of some Brexiters If we could just halve the burdens of EU social and employment legislation we could deliver a 4.3 billion boost to our economy and 60,000 new jobs Priti Patel, Employment Minister Recent attacks on equality rights Red Tape Challenge attacks on Equality Act 2010 Beecroft review and Conservative MPs sought to cap compensation for discrimination Beecroft review also described maternity and parental rights as wellmeaning but said for small businesses the price is not worth paying Plus ET fees, cuts to EHRC, attacks on unfair dismissal, union rights etc etc

Government commitments so far Time-limited commitment to workers rights Theresa May says existing workers rights will be guaranteed so long as she is in office Great Repeal Bill It will incorporate EU law into UK law when Britain exits It is expected to include powers enabling government to review and revise all EU-sourced laws Could include wide-ranging Henry VIII powers allowing changes, including of primary legislation, without proper parliamentary scrutiny Workers must not pay the price

Compliance with EU equality and employment rights should continue Vital that UK workers continue to benefit from at least the same level of protection enjoyed by their counterparts across the EU Best way of guaranteeing rights for future is to maintain membership of single market Seeking initial commitment from government that compliance will continue during transition period between Brexit and new trading arrangements being put in place Strengthen equality rights in the UK Abolish tribunal fees TUC highlighted 9,000 fewer people a month went to tribunal last year

than pre-fees 71% fall in sex discrimination, 58% in race and 54% in disability claims Increase funding to EHRC Facing further 25% cut on top of cuts from 70m in 2007/8 to 22m under coalition Needs funding to run in-house helpline, do more casework, monitoring compliance, regional presence and maintain up-to-date statutory guidance Plus strengthen independence with parliamentary rather than ministerial accountability

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