EU equality laws to be reinstated to avoid ‘gap in protections’ for workers

Lawyers have welcomed the move to retain EU-derived protections on workers’ rights – but it risks angering Tory Eurosceptics who want to see a divergence from Brussels laws.

The government has announced plans to reinstate EU equality laws before they expire at the end of the year – admitting the move is required to avoid a “clear gap in protections” for workers.

Ministers will today lay a statutory instrument intended to “enshrine” key rights and principles derived from the European Union into British law.

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It follows questions over whether some employment protections related to things like equal pay and maternity leave would be scrapped from January when The Retained EU Law (Revocation and Reform) Bill comes into effect.

The controversial legislation – also known as the “Brexit Freedoms Bill” – will dispense with hundreds of Brussels-derived laws still on British statute books. It will also end the supremacy of EU law over UK law, erasing previous case law principles.

Trade unions and employment lawyers had warned this would create uncertainty over key protections for British workers which derive from the EU and don’t exist in British law.

The government said its update today means “that necessary protections are clearly stated in our domestic legislation”.

One legal expert welcomed the announcement – but said it raised “legitimate questions” around what gains had been made from post-Brexit sovereignty if EU laws are simply going to be replicated.

The protections being retained include the “single-source” test, which gives women the right to equal pay with men for doing work of equal value, and preventing women from experiencing less favourable treatment at work because they are breastfeeding.

Other laws being retained include:

• Protecting women from unfavourable treatment after they return from maternity leave, where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return;

• Ensuring that women can continue to receive special treatment from their employer in connection with maternity, for example through enhanced occupational maternity schemes;

• Confirming that the definition of disability in the context of employment will explicitly cover working life;

• Holding employers accountable if they create or allow discriminatory recruitment conditions, such as if they make public discriminatory statements about access to employment in their organisation;

• Providing explicit protections from indirect discrimination by association, so that those who may be caught up and disadvantaged by discrimination against others are also protected.

The move could risk angering Eurosceptic Tories, who want to see the UK move away from the EU’s influence.

Max Winthrop, the chair of the Law Society’s Employment Law Committee, welcomed the clarification that vital rights “would not be for the legislative dustbin as of December 31st”.

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However, he said the move does raise “legitimate questions” about the point of Brexit, from a sovereignty standpoint.

“When we are effectively replicating legislation from the EU, and I can understand why the government have done that because it would not be particularly popular to say ‘let’s scrap maternity rights’, it does leave the big question as to what exactly is it that we’ve gained from leaving the EU,” he told Sky News.

“We haven’t gained what was sometimes referred to as the Singapore-on-the-Thames approach. In other words, to deregulate the marketplace. So you then have to ask yourself the question, is the loss of seamless trade throughout the European Economic Area really worth the cattle?”.

He added that the announcement shows why the original plan to scrap all remaining EU laws by the end of this year “would have probably been disastrous”.

“It shows the complexity of junking 40 years worth of (EU) legislation, and the sorts of steps we’ve had to go through to maintain the protections that a lot of people probably thought they already had.”

The Retained EU Law (Revocation and Reform) Bill was originally intended to scrap all EU-era laws which were kept in place after the Brexit transition period in order to minimise disruption to businesses.

But the promised bonfire of Brussels rules and regulations was dramatically scaled-back in May, with less than 600 now set to be junked by the end of this year.

Business Secretary Kemi Badenoch said the change was necessary because of the “risks of legal uncertainty” caused by automatically scrapping some 4,000 laws, but there was significant backlash from within the Conservative Party, with arch-Brexiteer Jacob Rees-Mogg accusing the prime minister of “behaving like a Borgia”.

Notes accidently left on the press release announcing today’s measures suggest some concern that retaining the protections could rile up the right wing of the party.

The notes discussed how to answer questions about why the government isn’t scrapping the protections, and whether maintaining discrimination laws would threaten free speech and “make businesses feel they must follow the woke agenda”.

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The document stresses that if the EU laws aren’t retained, “employers would in some circumstances be able to make statements, for example, that they wouldn’t hire people because they are black. That is not right and not in line with Britain’s proud history of equality and fair play”.

“We are only restating laws where there would otherwise be a clear gap in protections: this is an area where we think the law needs to be strong and clear,” the document says.

A government spokesperson said: “We are committed to ensuring that the fundamental rights and freedoms of people in the United Kingdom remain protected.

“Our work is ensuring that necessary protections are retained and will end the inherent uncertainty of relying on judicial interpretations of EU law.

“Today’s update will ensure that Great Britain maintains its proud history of equality and that necessary protections are clearly stated in our domestic legislation.”

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