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? Overwhelmingly the reasons mentioned were financial, despite the supposed economic recovery. E.g. Usdaw “a clear shift in focus from the needs of employees to the needs of the business”, Unite surveyed its reps found “a high proportion considered that financial pressures on employers have caused equality to be sidelined”. GMB said that equality is “seen as a luxury, nice to have but not essential”

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 Stand out issue is disabled workers being penalised for absence (2/3rds of those who’d dealt with equality issues or grievances), followed by flexible working and work- life balance for parents and carers, and bullying and harassment Note that unions are still making a difference, despite the harsh climate and Audit report has some good examples of unions providing training and guidance to reps and making some collective bargaining gains especially on pay, the adoption of work-life balance policies and harassment and bullying policies.

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 Disgusting moments in the campaign including the ‘Breaking Point’ poster of fleeing Syrian refugees. But government policy e.g. the go home vans Theresa May approved use of as Home Secretary Unions will play a role in challenging racism, as we always have but we need government and politicians and others to take firm stance and swift action

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 Britain’s efforts to accept other cultures has gone too far and this is a chance to take our country back (including 20% of remain voters) Thing we have to be clear on too is that there is still fairly widespread support for equality rights and principles. The referendum wasn’t entirely a vote on immigration either. Two-fifths of voters said immigration was one of the most important considerations when deciding how to vote, which means for a majority of voters other issues took precedence. And nearly two-thirds support EU nationals currently living and working in UK having guaranteed right to remain.

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 Drunk Alan Clark in Commons introducing Equal Value Regs in 1983 challenged by Claire Short on whether he really believed in what he was doing he replied “a certain separation between expressed and implied beliefs is endemic among those who hold office”. End of the sick man comparator. P v S and Cornwall County Council Coleman v Attridge Law Specific definition of harassment no longer had to show it was less favourable treatment because of protected characteristic – end of bastard defence Plus post-employment victimisation Coote v Granada, better back pay compensation in equal pay cases, access to occupational pensions and retrospective rights for part- time workers, getting equal unfair dismissal rights for part-time workers etc.

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 Fact now extended suggests some support for them, although some have suggested that further restrictions on age discrimination could be a target as like equal pay it can cost employers. 3 in 4 part-timers women, one in 6 cleaners in cleaning sector are BME workers where business transfers are common

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 applicability of Article 157 Mentioned some of decisions already on pregnancy/maternity discrimination, part-time women workers. Griffiths v DWP – ET and EAT said disabled worker disciplined for absence was not disadvantaged as non-disabled worker treated same so no trigger of reasonable adjustment duty. CA overturned this, citing ECJ case law in Danish Ring case on sickness absence and disability. Equal pay case law particularly vulnerable need to ensure rulings on proving indirect sex discrimination in Enderby case is incorporated into UK law and principles like right to equal pay applies where there is a ‘single source’ capable of correcting inequality.

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 “well-meaning” 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… Over years saw EU rights introduced against what UK government wanted e.g. Alan Clark on equal value, Michael Portillo on part-time workers rights saying giving part- time women equal rights to claim unfair dismissal would destroy employment for them – of course, women’s employment has risen in years since. We got reassurances from Brexiters when we raised concerns about workers’ rights during the campaign that they would be safe post-Brexit but occasionally the deregulatory zeal came out. Repeal of statutory discrimination and equal pay questionnaires and protections from harassment by third parties.

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 E.g. Michael Ford gave precedent of Legislative and Regulatory Reform Act 2006 which allows a minister to introduce statutory instruments to remove ‘burdens’ from legislation including primary legislation. Can’t affect things in Scottish and Welsh competence. And some provisions on need to consult certain representative groups.

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 Reports in papers yesterday that beginning to focus on need for transition arrangements. Will also continue to campaign to demonstrate importance of individual rights.

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 Improve rights for trade unions Attacks on facility time make it harder for unions, equality reps need facilities time Staff at EHRC have voted overwhelmingly in favour of strike action and mediation talks have just broken down. Proposals are that headcount will fall by a quarter and there will only be 3 frontline litigation and enforcement officers. G4S outsourcing