The EU debate – Discrimination Law

In this blog I want to look at the legal effect of EU membership from the perspective of discrimination law.

I begin by quoting (again – I hope he does not mind) from the advice of Michael Ford QC to the TUC* on this subject:

“It  is  difficult  to  overstate  the  significance of  EU  law  in  protecting against  sex discrimination.“

I am (again) deliberately trying to avoid a political take on this stuff.  I think Ford’s point would be accepted without significant qualification by perhaps 80-90% of employment lawyers.

Why is that?  Here are a few concrete examples of legal changes that arose directly out of EU legislation/caselaw:

  • Protection from discrimination on the grounds of sexual orientation.  Until 2003 this was not a protected characteristic (like sex, race and disability).  The Regulations that made it so came about in consequence of the EU Framework Directive.
  • Pregnancy protection: the European courts decided that it was not open to an employer to argue that it could justify discrimination against a pregnant woman by saying “we would have treated a man off with sickness the same way” – they ruled that pregnancy is (rather obviously) a female-specific condition – so that no comparison was necessary.  Without that ruling protection from pregnancy discrimination would be hugely undermined.
  • In the Equal Pay sphere the ECJ extended the concept of pay to pensions – so that part time workers were successfully able to claim equality of terms on the pensions front (and since most part timers are women…)
  • The ECJ has opened the way to claims of “associative discrimination” e.g. you must not discriminate against A, on the basis of A’s child’s disability (even if A is not disabled).
  • Compensation: the European requirement for proper compensation for discrimination made it so that the UK now allows unlimited compensation for victims of discrimination (it is plain that imposing a cap is on the agenda in the event of a Leave vote).

None of this is controversial stuff.  Links to the cases and Regulations that support these conclusions are all in the advice to which I link below.

Of course, none of this means you must vote any particular way.  My aim is simply to shed some factual light on just a small part of a subject that seems littered at present with half-truths and hyperbole.

* https://www.morrishsolicitors.com/wp-content/uploads/Brexit20Legal20Opinion.pdf