Reward insight
Suzanne Horne, partner and employment lawyer at Paul Hastings LLP, reveals the implications What will Brexit mean for workplace equality issues?
I t has been widely reported that since the vote to leave the European Union (EU) there has been Brexit-related bullying and harassment. At the same time, the latest research published by EY’s Women. Fast Forward initiative (https:// go.ey.com/2e7u0rl) predicts that women will achieve global parity in the workplace in 170 years: 2186. For many, equality issues are now overshadowed by the political and economic uncertainty surrounding Brexit. The referendum result is leading to concerns around the direction of travel regarding progress made in recent years on equality issues in the workplace. This concern is arguably well-founded. The EU has played a significant role to date in protecting and developing legal rights and driving forward the pace of change on equality issues. The UK already had some laws to protect people against various forms of discrimination, including legislation in relation to equal pay, paternity leave and race, sex and disability. These were embodied in UK law before the EU developed its own legislation. However, the EU has undoubtedly been an agent for change. For example, the EU Equal Treatment Framework Directive (2000/78/EC) required the UK to implement legislation to specifically address discrimination on the grounds of sexual orientation, religion and belief and age, while separate EU directives gave rise to the protection of fixed-term employees and part-time workers. What’s more, decisions of the European Court of Justice (ECJ) have historically expanded protection in relation
to sex discrimination and discrimination on the grounds of pregnancy and maternity, and more latterly associative discrimination. Take, for example, the issue of gender equality on boards. Although female representation is improving, there is still significant progress to be made. UK employers must be credited for reaching the target laid out in Lord Davies’ 2011 report Women on boards (http://bit. ly/1M77wjz) of having a quarter of FTSE 350 directors made up from women. However, this is largely due to the appointment of non-executives and, perhaps in part, the spectre of EU mandatory quotas. The reality is that today there are just six women running FTSE 100 companies. On leaving the EU, the UK will no longer be required to implement the EU directive on gender balance on boards. In addition, there is also issues of wider EU initiatives and funding. The EU has allocated over six billion euros to promoting gender equality between 2014 and 2020, including funding initiatives to encourage more female entrepreneurs and the better integration of migrant women into the labour market. This funding will clearly fall away. Despite this rather gloomy outlook, we should take some comfort from the current state of our discrimination laws and the so-called ‘Great Repeal Bill’. Much of the protection from discrimination today is enshrined in the Equality Act 2010; something which, as primary legislation, will remain in force even when the European Communities Act 1972 is repealed under the Great Repeal Bill. This will enshrine all
existing EU law into British law immediately prior to Brexit and end the jurisdiction of the ECJ in the UK. In addition, the UK will need to maintain minimum employment protections to ensure it is able to remain a strong trading partner for its European neighbours. Therefore, it is unlikely, although not impossible, that a future government would seek to overturn this. Yet there is potential for the UK to impose caps on compensation claims or to interpret legislation in a way that is not equality- friendly and there will no longer be an appeal to Europe. We can also say with some certainty reporting rules due to bite in April 2017 and developing case law, such as the on-going £100m multi-claimant action Asda Stores v Brierley, are only the tip of the proverbial equal pay iceberg. But the Working Time Regulations (particularly the ability to accrue holidays while on sick leave, the calculation of holiday pay and the limit on the 48-hour working week) and the Agency Worker Regulations 2010 are likely to be up for review. Undoubtedly, the most significant impacts of Brexit for discrimination laws and equality issues in the UK is the removal of the impetus for change and the inevitable shift in focus to the economic uncertainties resulting from this process. Some of the likely measures anticipated above will undoubtedly be welcomed by employers, but uncertainty can also create challenges for UK and international employers trying to keep abreast of developments. Global employers are advised to continue to focus on their human resources contingency planning and communications process as it promises to be a rocky road ahead. n that equal pay issues will continue unabated by Brexit. The gender pay
...caps on compensation claims or to interpret legislation in a way that is not equality-friendly...
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Issue 27 | February 2017
| Professional in Payroll, Pensions and Reward |
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