To what extent will Brexit have an impact on employment law regarding Equal Pay in the UK?

Shakar Abdullah Ba Hons Business and Management with Law Cardiff Metropolitan University

MAY 2017

Signed Statement

Declaration: I declare that this Dissertation has not already been accepted in substance for any degree and is not concurrently submitted in candidature for any degree. It is the result of my own independent research except where otherwise stated.

Name: SHAKAR ABDULLAH SIGNATURE:

ii ABSTRACT

The aim of this research paper was to analyse the impact that the UK existing the European Union would have on employment rights regarding equal pay. The UK joined the European Union in 1973. By joining, the UK became one of the member states bound by the European Union Treaties that set out the obligations and privileges of being a member, It’s main aim is to keep the peace between the member states. Regardless of all the benefits and privileges of this membership, the people of the UK chose to leave the European Union(EU). The referendum took place on 23rd June 2016 with 51.9% voters voting in favour of leaving.

The supremacy of Parliament played a massive role in answering this research question. It was vital to analyse the UK’s constitution to understand the relationship between the UK and European Union and to come to the conclusion that EU law had the power to override domestic law because Parliament gave the European Union that power. The rights regarding equal pay in the UK pre-dates those of the EU and although the Equality Act 2010 is a British statute passed by Parliament, it has been heavily influenced and embedded by EU law. As it has already been passed by Parliament, it is unlikely that changes will be made to the rights in the Equality Act 2010 regarding equal pay. This led to the analysis of Treaties as these are primary sources of EU law and directly applicable in the UK without parliament having to pass it. The rights from treaties such as article 157 TFEU providing extra protection to women regarding equal pay will not be applicable in the UK once they have completely existed from the EU.

In conclusion, it is unlikely that changes will be made to the Equality Act 2010 however the European Communities Act 1972 will be repealed. The rights coming from treaties will not apply in the UK after its exit from the European Union but that does not mean that the citizens of the UK will be put at a disadvantage The UK government has already promised that the Great Repeal Bill will not only maintain the protection of workers rights but to enhance them. Word Count: 12,287

iii ACKNOWLEDGEMENTS I would like to thank all the people that have helped and supported me throughout my final year at University. Firstly, I would like to thank my parents for their continuous love, support and criticism and for also proof reading my work.

I would like to express my gratitude to my dissertation tutor Styliana Diamantidi for her knowledge and expertise that helped me successfully complete this research paper and broaden my knowledge on this topic as a whole.

I would also like to express my appreciation to my head of year tutor, Myo Win-Pe for for always making time to support and guide me throughout the last two years.

iv Table of Contents Declaration…………………………………………………………………………………….…ii Abstract……………………………………………………………………………………….…..iii Acknowledgements…………………………………………………………………….…...iv Table of contents…………………………………………………………………………..v-vi 1. Chapter 1: Introduction……………………………………………………………..……….1 1.1 Aims and Objectives..………………………………………………………………….….4 2. Chapter 2: Methodology.…………………………………………………………………….5 3. Chapter 3: Evolution of Individual Rights ……………………………………….…..7 3.1 Hugo Grotius 1626……………………………………………………………………….…8 3.2 Thomas Hobbes 1651………………………………………………………………….….9 3.3 John Locke 1989………………………………………………………………………….….9 3.4 Jean-Jacques Rousseau 1762….……………………………………………….…….11 4. Chapter 4: Nature of the UK Constitution………………………………………….12 4.1 Magna Carta……………………………………………………………………………….…13 4.2 Unwritten Constitution..…………………………………………………………….….13 4.3 The Rule of Law……………………………………………………………………….…….14 4.4 Separation of Power …………………..………………………………………….……..15 4.5 Judicial Review……………………………..……………………………………………….16 4.6 ECHR……………………………………………..……………………………………….………17 5. Chapter 5: Parliament Supremacy and the European Union ………….….19 5.1 Supremacy ………………………………………………………………………..…….…….20 5.2 Direct Applicability …………………………………………………………….…….…….20 5.3 European Union Bill…………………………………………………………….…….……22 5.4 Court of Justice of the European Union …………………………………….……23 5.5 UK Referendum ………………………………………………………………………….….24 5.6 Treaty Articles and their applicability in the UK………………………………24 6. Chapter 6: Equality Act 2010……………………………………………………………….28 6.1 Background and formation of Equality Act 2010…………………………….29 6.2 Protection provided by the Equality act 2010…………………………………31 7. Chapter 7: Post-Brexit…………………………………………………………………………35

v 8. Chapter 8: Conclusion/Recommendations……………………………………….39 9. Chapter 9: Appendices………………………………………………………………………43 10. Chapter 10: Reference List………………………………………………………………..47

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1. CHAPTER 1: INTRODUCTION

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The title of this dissertation is ‘‘To what extent will Brexit have an impact on employment laws regarding Equal Pay in the UK?’’. This topic is very recent and will be on-going for the next two years during the negotiation stage. The focus of this research is sex discrimination regarding Equal Pay between men and women. This topic is very important because any decisions made while negotiating with the European Union on how the UK exits or any decisions made post-Brexit by the UK parliament will ultimately affect every single person in the UK. With most of the laws regarding employment deriving from the European Union, it is likely that changes will be made to the rights that workers enjoy right now. There is great uncertainty as to what will happen to employment rights in the future especially as there is no previous research done on this topic. This research paper will benefit employees that are unsure of what will happen to the rights that they enjoy right now, especially women in the workplace as most of their rights come from the EU.

The main aim of this research is to specifically look at what may happen to Equal Pay rights after exiting from the EU by identifying the options that Parliament have and the likelihood of them going with each option. Before doing this, it is important to understand what rights are and where they come from. This is demonstrated in the chapter ‘‘Evolution of Rights’’ by looking at different theorists such as Hugo Grotius, Thomas Hobbs, John Locke and Jean-Jacques Rousseau and their ideas of what a social contract is. The purpose of this chapter is to understand the concept of a contract between a government and its citizens to see if a government is able to take away rights after years of enjoying those rights.

This leads to the next chapter that explores the complexity and the ‘‘Nature of the UK Constitution’’. The UK does not have a written constitution, instead it is made up of centuries of case law, statutes, acts of Parliament and European Law. The UK’s unwritten constitution can be criticised for not having clear and unchangeable set of rules that govern the relationship between the state and its people. On the other hand, an unwritten constitution is more flexible as parliament can pass any law. This chapter also explores parliament sovereignty, the rule of law and the separation of

2 powers that make up the constitution and emphasises on the supremacy of Parliament. This supremacy is crucial in determining what will happen to certain employment rights as it ultimately comes down to if Parliament have the power to pass, override or remove any laws then they can do absolutely anything with the laws that have come from the European Union, however this links back to the the social contract chapter and whether Parliament is able to take away rights that people have enjoyed for so many years.

The ‘‘Parliament Supremacy and the European Union’’ chapter looks at how the UK joined the European Union and what effects this membership had on Parliament supremacy. Although the UK is a dualist state meaning that EU law has to be converted into domestic law to be binding, this is only the case for directives. This chapter will look at the argument that European Law is more supreme than UK law, the European Communities Act 1972 undermines the supremacy of Parliament by being directly applicable and having direct effect in the UK. The counter-argument is that parliament chose to give this power to the European Union because it is supreme.

The next chapter focuses on the Equality Act(EA) 2010 which is a British Statute passed by Parliament. This chapter will analyse whether Parliament will make changes/remove or keep the Equality Act (EA) 2010 that combines over 116 separate pieces of legislation. It will start off broadly by looking at how the EA 2010 came into existence and what protections people had before this act in order to explain how European Law is embedded into this Act. It will then identify the laws in the UK regarding Equal Pay and compare them to European laws regarding Equal Pay. This is important as it will show the timeline of what laws came first and how they changed over time, it will also determine whether parliament is likely to repeal any acts by taking into account whether it was incorporated by Parliament into domestic law or if it was directly applicable.

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As most of the European Laws that have been embedded into the Equality Act 2010 come in the form of directives, the next chapter will consider the extra protection provided by the European Union regarding Equal Pay in the form of treaties. Treaties are directly applicable and have direct affect in the UK meaning UK Parliament has not had the chance to incorporate it into domestic law. In order to answer the research question, it is vital to look at the Laws regarding Equal Pay from treaties and regulations as they are more likely to be modified by UK parliament. The aim of this chapter is to analyse the impact of UK Parliament removing such protection after Brexit.

Everything up until this point looks at the laws and regulations before Theresa May triggered Article 50 to start negotiating the exit from the European Union, the next chapter ‘‘Post-Brexit’’ will concentrate on what has happened since triggering Article 50 and what Britain has promised to do during the negotiating stage. This chapter will predict what is likely to happen to employment rights such as Equal Pay by taking into account ‘‘The United Kingdom’s exit from and new partnership with the European Union, 2017’’ report and a number of articles from CIPD and law firms.

1.0. Dissertation aims and objectives:  What can happen to Treaty Articles and Regulation that have direct applicability in the UK after Brexit?  Where do individual rights come from?  Once a right has been given to an individual by the State, can it be taken away?

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2. CHAPTER 2: METHODOLOGY

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The methodology used in this dissertation paper is qualitative research through the use of secondary data including books, journal articles, Statutes, case law and legislation. Doctrinal research in this research paper will include the use of Statutes, acts of Parliament, treaties, regulations and judgements of both the Supreme Court and the European Court of Justice as they have primary authority. The reason for conducting this legal research is to analyse the impact of European Law in the UK and the consequences of removing such laws. This research paper will be conducting a method of description to explain the state of affairs as it exists at present. It will also conduct a method of evaluation through the use of case law to predict the likely outcome of Brexit, more specifically the impact of Equal Pay rights in the UK.

Historical research will be carried out to understand the concept of rights and where they came from. Historical research is about looking at previous laws in order to understand why those laws have been developed into existing laws. It is important to look back at the laws that existed before the UK joined the European Union and the rights the EU have brought to the UK in order to predict what will happen in the future. Case Law analysis will form a big part of this dissertation as it consists of rules and principles from Judges that are particularly important in the UK’s unwritten constitution. Judges ruling from the European Court of Justice will no longer be binding in the UK after exiting the European Union, analysing previous case law will determine what Parliament may do with the rulings that the UK have to comply by.

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3. CHAPTER 3:

EVOLUTION OF RIGHTS

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Social contract theory is the view that people’s political or moral obligations depend on a contract that is formed by the society that they live in. There are many different ideas of what a social contract is or should be and these are explained by theorist such as Hugo, Grotius, Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Social contract identifies fundamental natural rights as life, liberty and property, as stated by John Locke however, it is the constitution that expands these right in order to be more precise about what they stand for such as the right to speech and publication. The exercise of natural rights may be restricted if they cause conflict with other members of society but only enough to resolve the issue (Social Contract Theory, 2017). According to a social contract, natural rights cannot be delegated or given away, they are inalienable. It is important to understand this concept in order to determine what Parliament will do with the rights that have come from the European Union.

3.1. Hugo Grotius 1625 In the early 17th century, Hugo Grotius introduced the modern idea of natural rights of individuals and stated that each individual has natural rights to protect themselves from harm. He seeks to find a natural law that everyone could accept and follow. He states in his ‘‘On the Law of War and Peace’’ that even if we were to concede what we cannot concede without the utmost wickedness, namely that there is no God, these laws would still hold. This idea was criticised as it was seen to cause conflict. It suggested that power can ultimately go back to the individuals if the political society that they have set up does not follow the purpose for which it was originally established. He believed that people are sovereign, not the political society. People have rights as human beings but there are limits to those rights because of what is possible for everyone to accept morally; everyone has to accept that each person as an individual is entitled to try to preserve themselves. Each person should, therefore, avoid doing harm to or interfering with another. If these rights are breached, then they should be punished (Neff, 2012).

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3.2. Thomas Hobbs 1651 Thomas Hobbs was the first modern philosopher to articulate a detailed contract theory. He believed that the lives of individuals in the state of nature were "solitary, poor, nasty, brutish and short", a state in which self-interest and the absence of rights and contracts prevented society. Hobbs’s main concern was the danger of political and social order and how human beings can live together in peace without fearing a civil conflict. He proposed clear alternatives, one is that we as human beings should give our obedience to an accountable person or group of people that will have the power to decide on every social or political issues. If we do not do this, what awaits us is a ‘‘state of nature’’ that closely resembles a civil war. It will create insecurity where people will fear violence and death (Bobbio, 1993).

Hobbes described a social contract as individuals coming together and giving up some of their rights so that other people would follow and give up theirs too. This resulted in the establishment of the state. This is a sovereign entity that would create laws to regulate social interaction. However, the state system was also without leadership and acted in their self-interest in competition with each other just like the way individuals had been before the establishment of states. The states were bound to be in conflict with each other because there was no sovereign power over the state that was capable of imposing laws. This is similar to the relationship between the European Union and the UK, although there is no conflict between them, it is clear that the UK wants to exit from the EU to regain ultimate power.

3.3. John Locke's (1689) John Locke's idea of social contract is very different to Hobbes' in many different ways. Locke believed that people in a state of nature would willingly come together to form a state, he believed that individuals in a state of nature would be bound morally to not harm each other but without government to defend them against those seeking to injure or enslave them, people would have no security in their rights and would live in fear. Locke argued that individuals would agree to form a

9 state that would provide a "neutral judge", acting to protect the lives, liberty, and property of individuals (Dunn, 1969).

Hobbes compared the English Revolution to the state of nature which was brutal. This negative view led him to believe that society was in need of a strong king where as Locke had a positive view about the state of nature and that governments were put in place for the people, if they did not do as much for the people as they did for themselves then they could be removed. One of the main differences between these two theorists is that they had different views on the rights of individuals. Hobbes’s theory states that men are equal in physical and mental abilities, some men may be stronger than others but the weak are capable of forming groups to kill the stronger and become strong themselves. This is why men give consent to governed for the sake of survival. On the other hand, Locke’s view of mankind is nicer. He states that people are governed by natural laws that come from their creator and also inalienable rights, now known as human rights. The three well known rights are Life, Liberty and property ownership. Locke’s idea on humans being more communal than individualistic is what has got us to where we are today with regards to human rights. This idea of owing our lives to God makes human beings all equal so therefore any alliance or government is subject to law rather than above it just like individuals are (Owlcation, 2017).

A Commonality of Hobbes and Locke is the need for a government. Hobbes reason as to why governments are formed is for self-preservation, people fear for their lives. A mans fear of each other categorise life in a state of nature but the fear of a government categorises civil society (Deutsch, 2009). Hobbes believes that governments should have absolute sovereignty because if their power is limited, they may fail to protect individuals. The government can use this power to motivate people to do things out of fear, for example going to battle. One thing Hobbes failed to do is to give a solution for when the government abuses that power and becomes oppressive. Locke’s idea of a government is that it is set up to serve its people. The government does not have absolute sovereignty because sovereign power is

10 governed by natural law and human rights. Locke suggests that to prevent the government from abusing their power, there should be a separate legislative and executive branch. If the government does abuse their power, the people have the right to create a new government (Philosophy & Philosophers, 2017).

3.4. Jean-Jacques Rousseau (1762) Rousseau’s theory on social contract is to determine how freedom may be possible in a civil society. ‘‘Man was born free, and he is everywhere in chains.’’ Rousseau referred to the constraints placed on the freedom of people as chains and that society suppresses the birth right of humans to physical freedom. Entering into a social contract puts restraints on people’s behaviour however by giving up their physical freedom, they gain civil freedom by becoming part of a group and being able to think rationally. He did not agree with the idea that legitimate political authority is found in nature but that the authority a father has over a child is the only natural form of authority. This is very different too what other theorists such as Hobbes and Grotius believed. These theorists compared the relationship between the government and its people to that of a father and child in the sense that the government will care and look after its people. Rousseau states that this kind of superiority that governments have over its citizens is not by nature but by force (Rousseau, 1913).

Rousseau’s social contract is based on popular sovereignty rather than individual sovereignty. The contract is not affirmed by the individuals that agree but by the group collectively, the contract is seen as more important than the individuals separately. This argument was not popular with everyone as it was seen as insulting that individuals are not important on their own and that they are just a small part of a big group, it seems that Rousseau’s idea revokes freedom (Sparknotes.com, 2017).

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4. CHAPTER 4: NATURE OF THE UK CONSTITUTION

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4.1. Magna Carta Magna Carta ‘‘The Great Charter’’ was originally issued by King John of England (1911-1216) as a solution to the political crisis he faced at the time. This document, for the first time in history, established the principle that everyone, including the King, was subject to the law. Magna Carta still remains a cornerstone of the British Constitution. It contained 63 clauses when it was first created but only three of those clauses remain a part of the English Law today. These are to defend the liberties and rights of the English Church, the liberties and customs of London and other towns and the most famous one is ‘‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land’’. This document is regarded as the foundation of democracy in England even though the majority of its clauses have been repealed or replaced by other legislation such as the Human Rights Act [1998]. (Holt et al., 2015)

4.2. Unwritten constitution Most countries have a written document known as ‘‘The Constitution’’. A constitution is a set of rules that govern the structure and functions of a government and regulates the relationship between the state and its people. Professor KC defines the constitution of a state as ‘‘the whole system of government of a country, the collection of rules which establish and regulate or govern the government’’ (Wheare, 1966). A written constitution is one that contains a document that defines the basic rules of the state. A written constitution was originally created by America after the American War of Independence (1775-1783) and the French Revolution (1789). The UK does not have a written constitution in the sense of a written document instead it has gradually evolved over the centuries. It is made of a number of different sources such as Law and custom of Parliament, case law, statutes, constitutional conventions, law of European Union and European Convention of Human rights. United Kingdom’s constitution compared to United States and Australia is much more flexible, it does not have the rigidity of most written

13 constitutions as Parliament is the supreme law making body and can pass any law by a simple majority vote in parliament. No court can declare an act of parliament void. (Barnett, 2016). Parliament Sovereignty, the rule of law and the separation of power is what makes up the constitution of the United Kingdom.

Much of the constitution is in fact written and mostly occurred in recent years such as The Scotland Act 1998, Northern Ireland Act 1998, Government of Wales Act 1998 & 2006, Human Rights Act 1998, House of Lords Act 1999, Parliamentary Standards Act 1999, Freedom of Information Act 2000, Constitutional Reform Act 2005. Constitutional Reform and Governance Act 2010, Fixed-term Parliaments Act 2011 (Barnett, 2016). These Acts were created by Parliament and can be removed by Parliament any time.

4.3. The rule of Law Parliament is an important characteristic of the UK Constitution. It is a supreme legal authority that is not subject to any limitations. According to William Blackstone ‘‘What Parliament doth, no power upon earth can undo’’ (Blackstone, 1979) similar to Dickey’s view of Parliament, ‘‘Parliament has total power. It is sovereign’’. Albert Venn Dicey was Vinerian Professor of English Law at Oxford University (1882-1909). He argued that the Rule of Law has three main aspects. ‘‘No man is punishable except for a distinct breach of law’’, ‘‘No man is above the law’’ and ‘‘the general principle of the constitution.. are with us, the result of judicial decision determining the rights of private persons in particular cases brought before the courts’’ Dicey’s book, Introduction to the Study of the Law of the constitution was very popular with UK’s lawyers who found it difficult to find principles of constitutional law to explain the relationship between Parliament, government and the law. This book gave them a legal language and they were able to communicate with the American and European lawyers easier as they were used to a written constitution (Syrett, 2014) however Dicey’s work was not popular with everyone, Sir Ivor Jennings, a lawyer and academic did not agree that there is equality before the law regardless of status. There are too many exceptions such as the Crown enjoying immunity under the Law,

14 government exercising prerogative powers which may go against the rights of individuals, ministers have power to enact delegated legislation, police have powers over other citizens.

Professor Lon Fuller a legal philosopher from Harvard University has a very different perspective on the rule of law. He criticized legal positivism and defended secular form of law theory. Fuller stated that there is a moral quality in law that presents itself in two forms. First is the ‘morality of duty’ which is the basic foundations that a legal system should have in order to serve its people and second is the ‘morality of aspirations’ which allows the people to pursue their life goals. He believed that a legal system that fails to serve its people, is no legal system at all (Barnett, 2016). Professor Hart of University of Oxford criticized Fuller’s theory as he did not agree that an immoral law should be regarded as invalid. Hart preferred the retrospective approach, accept that a law is valid regardless of how immoral it is and then decide what to do with it. Joseph Raz, a legal philosopher agreed with Fuller’s theory and added that people cannot be expected to follow laws that have not yet been introduced. There must be clear rules and procedures for making laws and it should not be changed too frequently to save confusion (Slapper and Kelly, 2017).

4.4. Separation of power UK’s is a unitary constitution where there is a sovereign legislative body that represents the ultimate law-making power. This power is then given to the Northern Ireland, Welsh and Scottish legislatures to fulfil functions such as raising local revenue, services, and finance. Only parliament can give the local authorities this power and they can also take away this power. The state is made up of three functions, Executive, Legislature and Judiciary (Pollard et al, 2007). The legislative function is the law making body which is exercised through parliament. It can delegate power to other bodies to make delegated legislation under the authority of an Act of Parliament and also control the executive function. The executive function is made up of ministers and members of parliament that create, monitor and regulate general policy. The Judiciary function is an independent body that ensures

15 compliance. It interprets and applies law through the supreme court (Alder, 2015). The reason why these three functions are not combined into one single body is because it would become too powerful and may abuse that power. To Avoid the abuse of power, it is distributed between the three functions and all functions have the authority to check and balance the power of the other two functions.

The courts can intervene to control any abuse of power. In the case Re Recal Communications Ltd [1981] made it clear that mistakes of law made by the High Court judges can only be corrected by an appeal by an appellate court or can not be corrected at all if the statute provides that the judges decision shall not be appealable. Some members of parliament were abusing the system of parliamentary allowances and expenses in 2009. This promoted the introduction of Parliamentary Standards Act [2009] which established the Independent Parliamentary Standards Authority to regulate the system of pay and allowances that is an outside body from parliament (Slapper and Kelly, 2017).

4.5. Judicial Review Judicial review is a process that gives the High Court the ability to review the legality of decisions made by bodies exercising public law functions such as local authorities, tribunals, government ministers and departments, inferior courts and other administrative bodies. Unlike the United States and other jurisdictions, UK law does not allow judicial review on primary legislation made by Parliament. The only exception to this is if the primary legislation conflicts with EU law or the European Convention on Human Rights. The court can not challenge the merits of the decision but to establish whether that body is entitled to make that decision. In Chief Constable of North Wales Police v Evans [1982] Lord Brighton stated ‘‘Judicial review is concerned, not with the decision, but the decision making process. Unless the restriction of the power of the court is observed, the court will in my view under the guise of preventing abuse of power, be itself guilty of usurping power’’. Lord Diplock identified the grounds for review of a decision to be illegality, irrationality and procedural impropriety in the case CCSU v The Minister for the Civil Service [1984].

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The Constitutional Reform Act [2005] was an Act of Parliament to achieve a clearer separation of power between the legislature and the judiciary. Previously, the highest court had been the Appellate Committee of the House of Lords, the Lord Chancellor was head of the judiciary and judges were appointed by the Queen with the advice of the Lord Chancellor. This meant that the highest court in the UK was within the House of Lords therefore subject to political influence. This Act reformed the office of Lord Chancellor, transferring his powers as head of the judiciary to the Lord Chief Justice, it allowed the House of Lords to elect its own speaker and also established a new Supreme court which was separate from parliament. (Barnett, 2016)

The last and greatest constitutional change occurred when United Kingdom joined the European Union in 1973. This was a huge change for the constitution as it not only meant that the UK had entered into an agreement with other member states but it also meant that they joined a unique legal order. The Court of Justice enforced rights and orders regulated by treaties. (Foster, 2016) Chapter 5 will discuss this topic further.

4.6. ECHR The European Convention on Human Rights and fundamental Freedoms was created to guarantee the protection of basic rights against the state. Peace treaties were negotiated after the First World War however it wasn’t until after the Second World War that the Council of Europe was established and the Universal Declaration on Human Rights was adopted. The International Bill of Human Rights is made up of two international covenants, the International covenant on Civil and Political Rights and the International covenant on Economic, Social and Cultural rights. The courts in the United Kingdom had no jurisdiction to enforce the rights and freedoms but saw it as an aid to interpretation however this changed through the course of many years of case law. R v Secretary of state for the Home Department ex parte Brind [1991], The Broadcasting Act [1981] conflicted with the article 10 of the convention ‘‘Freedom of

17 expression’’. It was accepted that where a statue permits two interpretations, one being in line with the convention then the interpretation that fits with the convention should be preferred also in the case Derbyshire County Council V Times Newspaper Ltd [1993] Butler-Sloss LJ declared in the Court of Appeal that when there is ambiguity or the law is unclear, the court is obliged to take into account Article 10 of the convention, however this was not the case in R v Inland Revenue Commissioners ex parte Rossminster Ltd [1980]. In this case the House of Lords ruled that if a meaning of a Statue is clear and unambiguous, the court has no jurisdiction to go against the unambiguous words and should let Parliament give effect to its words. Lord Sumption gave a definitive summary of the UK’s obligation under Article 46.1 of the Convention in the case Chester & McGeoch V Secretary of State for Justice and another [2013]. He said, “It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party. This obligation is in terms absolute.”

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5. CHAPTER 5: PARLIAMENTRY SUPREMACY AND THE EUROPEAN UNION

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5.1. Supremacy

Parliamentary supremacy is one of the fundamental tenets of the UK’s constitution. It confers ultimate legislative power to parliament by giving the right to make or unmake law’s and no person is recognised by the law of England to have the power to override or set aside law’s made by parliament (Syrett, 2014). According to A.V. Dicey (Law of the constitution, 1885) parliament has total power, it is sovereign. However, parliament has limited its own sovereignty by becoming a member of the European Union (EU). S.2(1) of European Communities Act [1972] states that EU law must be ‘‘recognised and available in law’’ and should be ‘‘enforced, allowed and followed accordingly’’.

The UK was not one of the founding member states of the original communities. It became a member of the Economic Community(EEC) in 1973 by accepting all the previous Community legislation passed, such as Treaties, Regulations and Directives (Pollard et al, 2007). When the UK first joined the EU, the English courts took the view that English law and EU law were of equal status and that section 2(4) of the European Communities Act was a principle of construction meaning that it demands that the courts interpret national law to comply with EU law. In Garland v BR Engineering Co [1982] there was conflict between Sex Discrimination Act 1975 and Article 119 of the European Economic Community 1957 Treaty, stating Equal Pay for men and women. Court of Justice held that employees have been discriminated against therefore Article 119 was directly applicable.

5.2. Direct Applicability

The UK functions as a dualist state. This means that in order for EU law to be binding in the UK, provisions of an international treaty must be converted into domestic law by being enacted by the Parliament as an Act of national legislation however the European Communities Act [1972] states that EU legislation is directly applicable in all member states therefore invalidating the dualist approach and undermining the sovereignty of parliament (Foster, 2016). The case R v secretary of State for

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Transport, ex parte Factormate Ltd [1991] demonstrates further loss of legislative supremacy. The House of Lords ruled that where national law conflicts with EU law, national law must be set aside. Judges must remove any national legislation that isn’t compatible with EU law. In this case the Merchant Shipping Act 1998 conflicted with the Treaty of Rome 1957. The primacy of EU law over national law goes against the idea of Dicey’s parliamentary sovereignty and that no law made by parliament can be overruled.

Section 2(1) of the European Communities Act 1972 states that Regulation and certain articles of the European Union Treaties are directly applicable and have direct effect. They are automatically binding without Parliament having to convert it into domestic law. Without this section EU law could not automatically become part of national law. Other secondary sources of law apart from Regulations are not directly applicable to all member states. A Directive is a set of rules and objectives that has to be achieved however the method of implementation is left to the member states. Each directive contains a deadline by which it has to be implemented by, if it is implemented late, wrong or not implemented then there will consequences. Another secondary source of law is Decisions. It is only binding to those EU countries that it addresses. Decisions are directly applicable and have direct effect if it is addressed to the UK. (Craig and Burca, 2015)

There are three sources of European law which are primary law, secondary law and supplementary law. Secondary legislation is made by the European Union institutions. There are five legal instruments that make up secondary law. The binding legal instruments are Regulations, Directives and Decisions. There are also non-binding legal instruments which are Recommendations and opinions (Article 288 of TFEU, 2007). Directly applicable EU law goes against the principle of Parliamentary Sovereignty in the UK as Parliament has not got the power to accept or reject these laws.

There’s been efforts made to make sure that parliament still has the ultimate power. S.18 of the European Union Act [2011] states that ‘‘Ultimate authority remains with

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Parliament’’. The act was originally meant to be a sovereignty clause for UK’s Parliament however the final text of this provision simply confirmed that EU law is supreme over all domestic laws due to the European Communities Act [1972]. Section 7 of the EU Act [2011] provides that some categories of decision must be approved by Parliament and section 10 states that some decisions do not require approval by the act however the ‘‘referendum locks’’ is the most demanding control mechanism.

5.3. European Union Bill

The European Union Bill was first introduced to the House of Commons on 11th November 2010. It was created to change the way the UK gives its agreement to certain EU Treaty changes and decisions, to allow for adjustments of seats in the European Parliament and to accept the doctrine of Parliamentary sovereignty in EU context. Part I of the Bill establishes three control mechanisms called ‘‘Locks’’ which are Acts of Parliament and a UK-wide referendum, Act of Parliament and Parliamentary approval by motion. It states that “any proposed future treaty that transfers areas of power, or competences” to the EU needs to be decided through a referendum. Although this was created to give back the power to Parliament, it can be seen as a substantial limitation on Parliamentary sovereignty as certain decisions have to be made through the majority of votes by the people (Slapper and Kelly, 2017)

The case Jackson v Attorney General [2005] has major constitutional significance and also promotes further debate on the Parliamentary Sovereignty in the UK. The House of Lords had the task of deciding whether the Hunting Act [2004] was a lawful act of parliament. The Bill was forced through without the House of Lords consent by using a process under the Parliaments Act 1911 and 1949. The appellant claimed that the Parliaments Act 1949 was also unlawfully passed without the The House of Lords approval. It was decided that Parliaments Act 1949 was lawful because it followed the provisions of the 1911 act therefore the claim failed. This case also raised questions about whether Parliament has the authority to enact legislation that

22 violates fundamental constitutional principles. (Slapper and Kelly, 2017) In the case British Railways Board V Picking [1974], Lord Reid stated that the courts do not have the power to question the validity of acts or to consider the act as void. The court is not to question Parliaments procedure behind legislation.

5.4. Court of Justice of the European Union The Court of Justice of the European Union (CJEU) is a judicial arm of the European Union, its judgements override those of the national courts. It is the final arbiter for citizens and plays an important role in the development of the UK’s law. CJEU interprets EU law to ensure the same application and interpretation in all EU countries. When a national court is in doubt about EU law, it can ask the CJEU for clarification to ensure that national law is complying with EU law. This is called The Preliminary ruling and the procedure is set out in Article 267 TFEU. The CJEU also aims to settle disputes between EU institutions and national governments through infringement proceedings (European Commission, 2017).

The Primacy of European Union Law is an EU law principle developed by the European Court of Justice that states that when there is conflict between European law and national law, national law has to be set aside. European law always takes precedence over national law including constitutions of member states (Paperworth, 2014). Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] is a leading case in the development of the doctrine of direct effect and demonstrates the COJ’s view on supremacy of EU law. The court held that ‘‘the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights’’ (Jowell & Dawn, 2011). This new legal order was then used in the case Flaminio Costa v ENEL [1964] Case 6/64 when Costa could not challenge the decision of Italy’s laws because the Treaty provisions had no direct effect. Costa did raise a point of European law against national governments in legal proceedings before a court in that member state. If Costa was not able to challenge national law when it was incompatible with European Law then European law would not be effective. EU is supreme because of the transfer of power and sovereignty

23 from the member states. There would be no point in such a transfer of power if the member states could simply suspend the effects of EU law by provisions of the constitution or national law. (Woods and Watson, 2017)

5.5. UK Referendum On 23rd June 2016, the United Kingdom European Union Membership Referendum took place to decide whether the country is going to remain a member of the EU or leave. The referendum resulted in 51.9% of voters voting in favour of leaving the EU. To start the process of leaving the EU, the British Government will have to trigger Article 50 of the Treaty of European Union. The government started that process in March 2017 and the withdrawal process will take approximately 2 years. Chapter 4 will look at what can happen to 50 years of common legal framework, if parliament will regain its power and how if it will impact the employment rights within the UK.

5.6. Treaty Articles and their applicability in the UK

Directly applicable is stated in Article 288 Treaty on the Functioning of the European Union(TFEU) as being legally valid in the member states without having to be implemented by domestic law. Direct effect refers to how an individual can rely on EU law in domestic courts. Treaty Articles and regulations are vertically and horizontally directly effective meaning that they can be relied upon against a member state and against other individuals or private bodies (Foster, 2016). The criteria set out by the Court of Justice has to be satisfied for a Treaty or Regulation to be capable of direct effect. The criteria established in the case 26/62 Van Gen den Loos V Netherlands Inland Revenue Administration [1963] as having to be 1) clear/precise, 2) Unconditional 3) no implementing measures required by member states and 4) not leave any discretion to member states. This is the main difference between Treaties and Regulations compared to directives as directives only have vertical direct effect meaning that an individual can only make a claim against the state. In certain cases, directives are capable of having horizontal direct effect due to the jurisprudence of the Court of Justice. In C-9/70 Grad v Finanzamt Traunstein

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[1970] COJ held that directives and decisions may have direct effect if their ‘‘nature, background and wording’’ were capable of this, the court relied on the doctrine of effectiveness known as ‘‘efet utile’’. This was done to provide a legal safeguard for individuals in their national courts.

Directives can not be relied upon until it has been implemented by member states unless the state has failed to implement it correctly or on time. It is unlikely that the rights that have come from directives from the European Union will be removed or altered after Brexit because they have been implemented by UK’s national legislation however this is may not be the case for the Treaty articles and Regulations. Treaty articles are primary sources of European law that are directly applicable in the UK without parliaments interpretation and that can be relied upon by anyone. This emphasises the supremacy of EU law by allowing the supremacy doctrine to be applied at national level in all member states (Jowell & Oliver, 2011). Once the UK has completely exited from the EU, the treaties will not be applicable the UK anymore meaning the people will not able to rely on these rights in domestic courts. The question is will this be better for the people of the UK or worse in terms of rights that they are entitled too as not all right regarding Equal Pay are covered by the Equality Act 2010.

Article 157 TFEU has horizontal and vertical direct effect in the UK and provides extra protection to women. If they do not meet the criteria for ‘‘same employment’’ under the Equality Act 2010, they can bring a claim under European law if they meet the ‘‘single source’’ test. This is when a woman is able to compare herself to a male employee who does not work for the same employer however the differences in pay is related to a single source. This was confirmed in the case Lawrence v Regent Office Care Ltd [2003] however in this case a single source could not be identified that could restore equality. In Beddoes and Others v Birmingham City Council [2011] the Employment Appeal Tribunal held that if a claim is made under UK law and the conditions in the Equality Act 2010 have been met, there is no need to determine a single source. It is clear that the protection provided by the Treaty articles is

25 separate to that stated in the Equality Act 2010. Article 157(2) TFEU gives a wide definition of pay as ‘‘ordinary basic or minimum wage/salary and any other consideration, in cash or in kind’’. This definition covers benefits other than pay such as overtime pay, travel benefits, maternity benefits, bonuses, pensions etc. These benefits may be compromised after Brexit as this wide definition was given by the European Court of Justice.

The Great Repeal Bill was introduced to Parliament on 10th October 2016 and will repeal the European Communities Act 1972 so Parliament regains the power that they gave to the European Union. The Great Repeal Bill will make sure that European Law is preserved during the two-year negotiation period, after that Parliament will decide which European Law’s to repeal, amend or keep. The UK’s approach to preserving European Law in the UK is to make sure that Treaties and Regulations that are directly applicable will have effect not only during the two-year negotiation period but also after the UK has exited from the European Union. Rights from Treaties and Regulations will have affect until Parliament incorporates them into domestic law (White Paper, 2017). From this, it is clearly that not much will change straight away, the rights from the Treaties and Regulations will still be applicable in the UK and will remain similar, if not the same even after Parliament has changed them into domestic law.

The Compensation cap that was originally from the Sex Discrimination Act 1975 was repealed in 1993. The European Union made Regulations under the European Communities Act 1972 to make sure that domestic legislation complied with the requirements set out in Council Directives (1975/117/EEC) and (1976/207/EEC) when dealing with sex discrimination and equal pay for men and women. Brexit could mean that the UK government reintroduces a maximum cap in equal pay and sex discrimination cases. If this was the case, the amount the compensation is capped at would play a major role in deciding whether to bring a claim to the tribunal. If the amount is not worth the time/process and reward, many people would refrain from making a claim (Fieldfisher, 2016). The latest tribunal statistics

26 for October to December 2015 demonstrated a 70% drop in the number of single claims received since the introduction of fees for bringing a claim to the tribunal (Ford, 2016). If the government does introduce a compensation cap in equal pay and discrimination cases and people choose not to take their claim to the tribunal, the result would be an increase in inequality at work. On the other hand, it may protect employers from being exposed to great financial and reputational risks as a cap would require a minimum amount of year’s service so not everyone can bring a claim to the tribunal (Landau, 2016).

The European Court of Justice has shaped the interpretations and decisions of UK courts since the UK joined the European Union. According to the White Paper 2017, the supremacy of European law will end so therefore judgements from the European Court of Justice will be downgraded. Parliament will pass laws without interpretation from the Court of Justice. It is hard to determine if the decisions made before or through the transitional period of exiting the European Union will still be binding on UK courts after Brexit. The White Paper 2017 states that the decisions of European court of Justice will continue to be binding in the UK unless a judge in a domestic court has a valid reason to depart from it after Brexit or if the decisions are overridden by new Acts of Parliament. It is likely that UK courts would continue to respect and take into account decisions by the European Court of Justice however they will not be binding anymore so Parliament can decide to go against their decisions.

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6. CHAPTER 6: EQUALITY ACT

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6.1. Background and formation of the Equality Act Common law did not place any restrictions on employers to decide whether to employ an individual or not. Refusing to employ someone on any grounds including sex, race, disability was not deemed unlawful (Smith & Woods, 2015). This was a laissez-faire philosophy that was shown in Allen v Flood [1898] where Lord Davey stated ‘‘an employee may refuse to employ an individual for the most mistaken, malicious motives but that individual has no right of action against him’’. Equality was discussed in the case Roberts v Hopwood [1925] where an auditor asked the local council to raise women’s wages to be equal to their male co-workers however Lord Atkinson stated that this idea was a misguided principle of socialistic philanthropy, it was not the law to require equal pay.

The Equal Pay Act 1970 introduced new rights in the workplace for men and women but did not prohibit other forms of discrimination regarding men and women. This act was delayed for 5 years to give employers time to remove discriminatory terms and conditions and was heavily amended by the Sex Discrimination act 1975. This new Act tackled direct and indirect discrimination in employment, education and good/service provisions. The development of the Sex Discrimination Act 1975 during the two decades that followed, was mostly influenced by European laws that widened the scope to equal pay, benefits on death/retirement and gender reassignment. Article 141 of the Treaty of Rome 1957 which is now Article 157 TFEU, states that All member states much ensure equal pay for men and women for equal work/work of equal value. In 129/79 McCarthy’s Ltd v Smith [1980], the claimant was paid less due to her sex therefore wanted to rely on the Equal Pay Act 1970 however the respondent argued that she had no claim because this act did not allow comparison with other employees. It was held that the claimant could rely on European law which did allow comparison. Lord Denning MR said that it is our duty to give priority to treaties and pass legislation that fulfils its obligations however if parliament deliberately passes an act that does not comply with the Treaty then the courts should follow the statute of Parliament.

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Article 141 of the Treaty of Rome 1957 and its associated directives, (Equal Treatment Directive) and (Equal Pay Directive) were different to domestic UK law. For example, the definition of ‘Pay’ was much broader in European law. This is an important point because it outlines the supremacy of EU law over national law which is outlined in S.2(1) of the European Communities Act 1972 (Smith & Woods, 2015). In the case Amministrazione delle Finanze dello Stato v Simmenthal Spa [1978], the ECJ held that national courts had a duty to give full effect to EU provisions even in cases where it is conflicting with nation law or adopted later. If any national laws are not complying with EU law, the European Commission has the power to enforce compliance through the European Court of Justice. This was shown in case 61/81 EC Commission V United Kingdom [1982] where the ECJ held that the Equal Pay Act 1970 was not in compliance with the Equal Pay Directive in relation to Equal Pay for Work of Equal Value, this was later introduced into domestic law in 1983.

Equal Treatment Directive and Equal Pay Directive have vertical direct effect. This means that it can be relied on by anyone from the 28 member states but only against the state or ‘‘organ of the state’’, this is a body that provides a public service and that has special powers compared to other businesses. In Foster v British Gas Plc [1991], ECJ held that British Gas was an organ of the state therefore the directive could be relied upon directly against them however in Doughty v Rolls Royce Plc [1992], Rolls Royce was not seen as an organ of the state because they were not providing a public service.

Initially, the government did not implement the Directives through primary legislation which made it extremely hard to combine the old and new provisions as the existing legislation to do with discrimination could not be modified through secondary legislation. This improved slightly when the Equality Act 2006 was introduced. This act created the Commission for Equality of Human Rights but it did not consolidate the different strands of law regarding discrimination (Smith & Woods, 2015). This led to the creation of the Equality Act 2010. The idea of having one piece of legislation was discussed as early as 2000 in the book Equality: A new

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Framework. Chapter 2 of this book ‘‘Harmonising Legislation and Institutions’’ goes into detail the arguments for and against a single Equality Act (Hepple, Coussey and Choudhury, 2000). This idea was also discussed by the government since 2005. The governments proposal for a single bill was set out in a consultation paper that developed as a result of the discrimination Law Review 2005 which identified the opportunities and advantages of a single, clear and advanced legislative framework. (Discrimination Law Review: A Framework for Fairness, 2007).

6.2. Protection provided by the Equality Act 2010 The Equality Act (EA) 2010 combines over 116 separate pieces of legislation into one single Act that simplifies and strengthens the current legislation in the UK. It provides a legal framework that promotes equality and protects the rights of individuals through new discrimination law to create a fairer and more equal society (Smith & Woods, 2015). It aims to protect characteristics in certain areas such as in the place of work. Employment is defined in S.83(2)(a) of EA 2010 as ‘‘working under a contract of employment, apprenticeship or a contract to personally do work’’. This definition has been extended to cover both employees and self-employed people to widen the scope of protection. Along side the act, there are also codes of practice on Employment, Services and Equal Pay. This was created to assist courts and tribunals when interpreting laws by providing detailed explanations about the provisions of the act and how to apply them.

The European Union has introduced many directives regarding equality of men and women that now forms a part of the Equality Act 2010 as it was designed to comply with the obligations set by the EU. The EA 2010 is ultimately a British Statue that was passed by Parliament therefore it will continue to have affect even after the UK has left the European Union however this goes back to the supremacy of parliament as they are able to change, make amendments or remove this Act. It is unlikely that Parliament would make such drastic changes because even though Parliament remains sovereign, they would be in breach of both EU law and international law if they removed or changed this act before the UK has completely exited from the EU.

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The Equal Pay Act 1970 amended by the Sex Discrimination Act 1975 aimed to prevent discrimination between men and women in relation to employment however this only applied to situations where a contract of employment already existed. Other situations such as refusal of promotion or employment, vacancies, recruitment was covered by the Sex Discrimination Act 1975. This division is now set out in part 5 ‘‘work’’ and chapter 3 ‘‘Equality of Terms’’ (EA, 2010). Equal pay for Equal work is a requirement of EU law under article 157 TFEU (Phillips & Scott, 2017).

S.66 EA 2010 states that every contract of employment should include an equality clause. If the terms do not include a sex equality clause, they should be treated as having one s.66(1) and if the contract does not include beneficial terms that are included in other’s contract, they should be treated as including the same terms s.66(2)(a).

The contract of employment will only be modified by the equality clause if one of the three principle tests set out in s.65 EA 2010 are satisfied. This is done by finding a real comparator of the opposite sex if it is s.65(a) Like work, (b)work related as equivalent or (c) work of equal value. When looking at the ‘‘Like work’’ the tribunal will take into account the practical reality of the work undertaken rather than the wording of the job description. In Eaton Limited V Nuttall [1977], the EAT said the most important point is what the man does and what the woman does and the degree of responsibility when carrying out a task. S.65(2) defined like work as ‘‘same or broadly similar’’, this implies differences in detail however this should defeat a claim unless the tribunal states otherwise. In shields v Coomes (Holdings) Ltd [1978] the claimant was entitled to equal pay because there was no evidence of the man being more skilled/trained and found that the employer had paid too much attention to contractual terms rather than actual practicalities (Smith & Woods, 2015).

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The tribunal also looks at the duties performed by a man and a woman at different times that they are performed. If a male comparator is performing same tasks but at anti-social hours and under unfavourable conditions, this may amount to extra remuneration. This was shown in the cases National Coal Board v Sherwin [1978] and Thomas v National Coal Board [1987]. Another factor taking into account is the differences in qualifications. A claim should not be defeated on this basis however in C-309/97 Angestelltenbetriebstrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse [2000], CJEU surprisingly held that the same activities performed over a long period of time is different to having little or no experience. Article 157 TFEU and Equal Pay Directive was taking into account when deciding graduate psychologists were not to be regarded as doing ‘‘same work’’ as trained doctors. It could be argued that this decision by CJEU goes against the equal pay for equal work principle established by the European Union but they justified themselves by stating difference of performance came with experience in this case (Smith & Woods, 2015).

Where a job of a woman and a man has been given the same grade by a job evaluation scheme but the woman is getting paid less, the woman can claim equivalent to the comparator s.65(4) EA 2010. The job of the worker should be valued in terms of demand under various headings such as skills/effort/ability/responsibilities. In Springboard Sunderland Trust v Robson [1992], EAT held if a job evaluation scheme operates by giving points for the different criteria’s, it is not the number of points rewarded that is important but whether the woman and her comparator are placed in the same grade. If a woman job has not been rated as equivalent to her comparator or is not employed to carry out ‘‘like work’’ to her comparator, she may be able to claim for work which is of equal value in terms of demand S.65(6) EA 2010.

An employer can only justify differences in pay if it is regarding material factors that do not discriminate directly or indirectly against the employee because of her sex s.69(1) EA 2010. The employer has to provide factual explanation for the difference

33 in pay, material factors could include, performance of individual, special duties, additional responsibilities or greater skills/experience. This was shown in Mallabar v Worcester College of Technology [2011] where the tribunal accepted the difference in pay due to qualifications and experience.

Once a male comparator has been established to have more favourable terms of contract than a woman and the employer can not rely on any defences, the equality clause will come into force. If the equality clause has been breached, a claim can be made to the employment tribunal within six months of the termination of the employment contract. The tribunal may award remuneration for damages going back up to six years (Phillips and Scott, 2017). In certain cases, such as in Birmingham City v Abdulla and Others [2012], if the claim is out of time then they can bring a breach of contract claim to the Civil Courts however this is very costly. Damages for non-pecuniary losses can not be recovered in equal pay claims because they purely based on terms of contract.

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7. CHAPTER 7: POST-BREXIT

European Law is created through directives then incorporated into national

35 legislation once agreed upon. EU law has been incorporated into UK Law using secondary legislation under European Communities Act (ECA) 1972 or acts of parliament such as the Equality Act 2010. European Law has effect in the UK but only because Parliament has passed the ECA 1972. The government has stated that there will be a ‘‘Great Repeal Bill’’ that will repeal the ECA 1972 and turn EU law into British Law through parliament.

It seems unlikely that Parliament would choose to take away rights that workers have enjoyed in the UK for years. From previous examples, parliament has not only incorporated EU law regarding employment but has also provided extra provisions on top of the EU law. The Working Time Directive created a major change in employment law that ensured all workers are entitled to 20 days paid annual leave. Before this directive, UK workers did not have a statutory right to paid annual leave but after this directive was implemented, the UK government increased the entitlement to 28 days paid annual leave (Suff, 2017).

Paragraph 7.1 of ‘‘The United Kingdom’s exit from and new partnership with the European Union, 2017’’ (The White Paper) states that the UK will ensure continued protection of workers rights. Paragraph 7.2 adds that The Great Repeal Bill will maintain worker’s rights and protections. The UK government has also committed to not only keep the rights of worker that come from European legislation but to enhance them. The UK government has already extended some rights beyond what is required by EU law. For example, the EU has set out that women can have 14 weeks of maternity pay where as women in the UK can have 52 weeks of statutory maternity leave with 39 weeks of pay (Gov.uk, 2017).

Paragraph 1.1 of the White Paper states that the Great Repeal Bill will remove the European Communities Act 1972 but will covert the rights into domestic law so therefore the same rules will apply after the UK has exited from the European Union. Paragraph 1.2 adds that this method will mean that drastic changes will not be made overnight to protect the rights that individuals have enjoyed for many years.

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An Article on CIPD by Anthony Fincham (Partner and Head of Employment at CMS Cameron McKenna LLP) made a point that it is unlikely for the UK government to remove protections in the workplace regarding discrimination or equal pay. This is because UK’s legislation in relation to these issues existed before they joined the EU (Fincham, 2016). After leaving the EU, the UK would be able to amend these laws without fear of the European Commission bringing legal proceedings against them. Individuals will also not be able to bring a claim against the state for suffering financial loss as a result of failing to implement directives properly in the UK.

The UK has a long consultation and transition period ahead. The aim is to move forward to greater freedom and remove the contracts it has with the EU to create its own laws and regulations is areas such as employment. To remove all laws that come from the European Union would be theoretically possible however some laws are so embedded in the UK that they have become workplace norms. The removal of such laws would not only be unexpected by employees but would be politically difficult and unthinkable for any government (Fieldfisher, 2016).

Some laws have been implemented in the UK through secondary legislation such as the Equality Act 2010 so therefore it is unlikely that this will be repealed by the government although changes may still be made to Equality Act 2010 overtime. It is hard to predict what will happen to the laws that have derived from treaties and Regulations as they have been passed by the European Communities Act 1972. It is uncertain whether the laws under this Act will automatically be removed or changed when this Act is repealed.

The UK has introduced a new regulation that requires all big employers or public bodies that have 250 employees or more to publish data regarding their gender pay gaps which came into force 6th April 2017 for the private sector and 31S March 2017 for public sector. This is stated in the Equality Act 2010 under (Gender Pay Gap Information) and (Specific Duties and Public Authorities) Regulation 2017 (Acas.org.uk, 2017). This regulation has been introduced to improve the equality in

37 the workplace and close the gender pay gap. Woman on average still earn 18% less than men per hour, this is an improvement from the 23% in 2003 and 28% in 1993 but there is still a long way to go (Gender Pay Gap Reporting, 2017). If a company’s data is published, they are more likely to work on this issue to protect their reputation. Gender pay is different to equal pay as it shows the difference in the average pay between all men and women in the workplace. High gender pay gaps could be due to a number of issues that can be identified through the calculations. This regulation does not have any enforcements or sanction for non-compliance so it may prove to not make a difference in the work place. This regulation demonstrated that the UK parliament are taking steps to fight inequality in the workplace between men and women without the EU.

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8. CHAPTER 8: CONCLUSION/RECOMMENDATIONS

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It is evident that changes will be made to UK employment law following a Brexit however it is unlikely that sudden changes will be made straight after the departure. So many EU laws through treaties and directives are woven into UK case law that determines practices by employers that it would be a long and hard process to try and unravel such laws.

In a social contract, natural rights cannot be delegated or given away, they are inalienable. Hugo Grotius stated that if the political society does not fulfil the purpose that they were originally set up to do, the power would go back to the individuals because people are sovereign not the government (Neff, 2012). This is similar to John Locke’s idea of a government is that it is set up to serve its people and that only natural law and human rights have absolute sovereignty, not the government. According to this, the UK government would have to protect the right that have come from the EU regarding equal pay as the citizens of the UK have enjoyed these rights for many years and taking them away will most definitely be politically difficult. Parliament is supreme and can ultimately take those rights away but it is unlikely that they would do such thing due to the conflict that it would cause and the divide that it would bring between the state and its people.

The UK’s unwritten constitution is flexible with Parliament being the supreme law making body that can pass or remove any law by a majority of vote (Barnett, 2016). Albert Venn Dicey stated that ‘‘Parliament has total power’’ however Professor Lon Fuller perspective of the rule of law goes back to people being sovereign, not the government. He believed that the legal system should serve its people and if it failed to do so, it is not a legal system. Taking away rights that benefit people will undermine the relationship and trust between the state and its people.

Equality Act 2010 is a British Statute passed by Parliament that is made of 116 pieces of legislation of both domestic law and European Law. This act will continue to have affect after the UK has left the EU. The European law embedded into this act was introduced in the form of directives such as The Equal Treatment Directive and Equal

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Pay Directive, meaning that it was was incorporated into domestic law by Parliament. It is unlikely that drastic changes will be made to Equality Act 2010 as it has already been passed by Parliament, the laws that originated from the EU in this act will also remain as it has become been embedded into years of case and has become part of the workplace norms. If Parliament decided to make changed to this act over time, it would be to improve the protection provided in the act rather than taking away rights.

Protection provided by the treaty articles such as Article 157 TFEU that provides extra protection to women regarding bringing a claim to the tribunal and Article 157(2) giving a wide definition of pay to cover other benefits such as maternity, bonuses, pensions will be compromised after Brexit. Treaty articles will no longer be directly applicable in the UK once the two-year negotiation period is over therefore they will not have direct effect. This means that citizens of the UK can not rely on them. Treaty articles have also not been incorporated into domestic law by parliament like Directives which means they will be repealed by Parliament however it likely that Parliament will create their own laws regarding these issues to maintain the level of protection. Employment laws are so embedded in the UK that they have become workplace norms, to remove these laws would be politically difficult for any government even if they do have the power to remove them (Fieldfisher, 2016).

According to the Great Repeal Bill, European Law will be preserved in the UK during the two-year negotiating period and after the UK has exited. Laws including those that have come from Treaty articles and Regulation will continue to have affect until Parliament incorporates those rights into domestic law (White Paper, 2017). According to this, individual rights will not be subject to sudden change and they can continue enjoying the rights that they have. A right that has been given to individuals by the state can be taken away but with great difficulty. The UK has chosen to not go down the hard route but to keep the European Laws in place until they introduce their own laws.

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The UK government has already promised to maintain the protection of workers rights in Paragraph 7.1 of ‘‘The United Kingdom’s exit from and new partnership with the European Union, 2017’’, it has also promised to enhance those rights in the Great Repeal Bill. They have already proved that they will stick to this promise by introducing new measures to close gender pay gaps. This is a new UK regulation that requires all big employers or public bodies that have over 250 employees to publish data regarding their gender pay gaps in an effort to shed awareness on this issue and provide steps for the employers to take in order to close the pay gaps go (Gender Pay Gap Reporting, 2017).

Recommendation for future research is to look at other aspects of employment law that may be subject to change, employment laws that have been created and developed by the European Union that was not covered by any Act of Parliament/legislation in the UK. Equal Pay is only a tiny part of employment rights and UK’s legislation regarding this issue pre-dates the European Union. Research could be carried out after the two-year negotiation period of exiting the European Union to compare how much Parliament has actually changed or amended and what impact that has had on employees in the UK.

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9. CHAPTER 9: APPENDICES

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Appendix A

Ethics Form. Ethics Reference Number: 2016D02310 Name of applicant: Shakar Abdullah Supervisor (if student project): Stella Diamantidi School / Unit: Cardiff Metropolitan University Student number (if applicable): ST20041201 Programme enrolled on (if applicable): Business Management with Law Project Title: To what extent will Brexit have an impact on Employment Law in the UK? Expected start date of data collection: N/A Approximate duration of data N/A collection: Funding Body (if applicable): N/A Other researcher(s) working on the N/A project: Will the study involve NHS patients or No staff? Will the study involve taking samples of No human origin from participants?

Does your project fall entirely within one of the following categories: Paper based, involving only documents in the public domain No Laboratory based, not involving human participants or human tissue No samples Practice based not involving human participants (eg curatorial, practice No audit) Compulsory projects in professional practice (eg Initial Teacher Education) No A project for which external approval has been obtained (e.g., NHS) No If you have answered YES to any of these questions, expand on your answer in the non-technical summary. No further information regarding your project is required. If you have answered NO to all of these questions, you must complete Part 2 of this form

In no more than 150 words, give a non-technical summary of the project Click here to enter text.

DECLARATION:

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I confirm that this project conforms with the Cardiff Met Research Governance Framework

I confirm that I will abide by the Cardiff Met requirements regarding confidentiality and anonymity when conducting this project.

STUDENTS: I confirm that I will not disseminate any material produced as a result of this project without the prior approval of my supervisor. Signature of the applicant: Date: 01/12/2016 Shakar Abdullah

FOR STUDENT PROJECTS ONLY Name of supervisor: Date:

Signature of supervisor:

Research Ethics Committee use only Decision reached: Project approved Project approved in principle Decision deferred Project not approved Project rejected Project reference number: Click here to enter text. Name: Click here to enter text. Date: Click here to enter a date. Signature:

Details of any conditions upon which approval is dependant: N/A

PART TWO A RESEARCH DESIGN A1 Will you be using an approved protocol in your project? No A2 If yes, please state the name and code of the approved protocol to be used1 N/A A3 Describe the research design to be used in your project

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This dissertation will be entirely literature-based. The methodology for this research is theoretical analysis including discussions of legal theory and European and UK case law. It will have detailed comparison of theorists concerning social contract and compare the similarities and differences of the UK’s unwritten constitution and America’s written constitution. The main focus of this study is to explore the Equality Act 2010, understand where it came from and how Brexit will impact those rights that the act offers. The data that will be used in this research piece will be from Law books and journals, UK legislation, case law and the European Convention of Human Rights.

A4 Will the project involve deceptive or covert research? No A5 If yes, give a rationale for the use of deceptive or covert research N/A A6 Will the project have security sensitive implications? No A7 If yes, please explain what they are and the measures that are proposed to address them N/A

B PREVIOUS EXPERIENCE B1 What previous experience of research involving human participants relevant to this project do you have? N/A B2 Student project only What previous experience of research involving human participants relevant to this project does your supervisor have? N/A

C POTENTIAL RISKS C1 What potential risks do you foresee? N/A C2 How will you deal with the potential risks? N/A

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10. CHAPTER 10: REFERENCE LIST

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Case Law Allen v Flood [1898] AC 1 Amministrazione delle Finanze dello Stato v Simmenthal Spa [1978] ECR 629 C-309/97 Angestelltenbetriebstrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse [2000] ICR 1134 Birmingham City v Abdulla and Others [2012] UKSC 47 British Railways Board V Picking [1974] AC 765 CCSU v The Minister for the Civil Service [1984] UKHL 6 Chester & McGeoch V Secretary of State for Justice and another [2013] UKSC 63 Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 61/81 EC Commission v United Kingdom [1982] ICR 578 Derbyshire County Council V Times Newspaper Ltd [1993] AC 532 Doughty v Rolls Royce Plc [1992] ICR 538 Eaton Limited V Nuttall [1977] ICR 272 6/64 Flaminio Costa v ENEL [1964] Foster v British Gas Plc [1991] ICR 84 Garland v BR Engineering Co [1982] 2 WLR 918 C-9/70 Grad v Finanzamt Traunstein [1970] ECR 825 Jackson v Attorney General [2005] UKHL 56 Lawrence v Regent Office Care Ltd [2003] IRLR 822 Mallabar v Worcester College of Technology [2011] 129/79 McCarthy’s Ltd v Smith [1980] ICR 627 National Coal Board v Sherwin [1978] ICR 700 R v Inland Revenue Commissioners ex parte Rossminster Ltd [1980] AC 952 Re Recal Communications Ltd [1981] AC 374 R v secretary of State for Transport, ex parte Factormate Ltd [1991] 1 AC 603 Roberts v Hopwood [1925] AC 578 HL shields v Coomes (Holdings) Ltd [1978] ICR 1159 Springboard Sunderland Trust v Robson [1992] ICR 554 Thomas v National Coal Board [1987] ICR 758 26/62 Van Gen den Loos V Netherlands Inland Revenue Administration [1963] ECR 1

Legislation

Disability Discrimination Act 1995 Employment Directive (2000/78/EC) European Economic Community 1957 European Communities Act 1972 European Convention on Human Rights 1950 European Union Act 2011 Equality Act 2010 Equal Pay Directive (75/117/EEC) Equal Treatment Directive (76/207/EEC) Human Rights Act 1998 Hunting Act 2004

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Merchant Shipping Act 1998 Parliaments Act 1949 Parliamentary Standards Act 2009 Race Directive (2000/43/EC) Race Relation Act 1976 Race Relations (Amendment) Act 2000 Sex Discrimination Act 1975 The Broadcasting Act 1981 The Treaty of Rome 1957 The Equal Pay Act 1970 The Treaty On the Functioning of the European Union 2007 Treaty of Rome 1957 Working Time Directive (2003/88/EC)

Books Alder, J. (2015). Constitutional & Administrative Law. 10th ed. London: Palgrave, pp.137 - 143.

Barnett, H. (2016). Constitutional & Administrative Law. 11th ed. London: Routledge, pp.4-16. Blackstone, W. (1979). Commentaries on the Laws of England: A Facsimile of the First Edition. 1st ed. Chicago: University of Chicago Press, p.117.

Bobbio, N. (1993). Thomas Hobbes and the Natural Law Tradition. 1st ed. Chicago: University of Chicago Press, pp.50-93

Craig, P. and Burca, G. (2015). EU LAW, Texts, Cases and Materials. 1st ed. Oxford: Oxford University Press, pp.106-109.

Discrimination Law Review: A Framework For Fairness: Proposal for a Single Equality Bill for Great Britain. (2007). London: Department for Communities and Local Government.

Dunn, J. (1969). The Political Thought of John Locke: An historical account of the argument of the two Treatises of Government. 1st ed. Cambridge: Cambridge University Press, pp.71 - 82.

Foster, N. (2016). EU law. 5th ed. Oxford: Oxford University Press, pp.144 – 147

Hepple, B., Coussey, M. and Choudhury, T. (2000). Equality: a new framework. 1st ed. Oxford: Hart publishing, p.Chapter 2.

Holt, J., Clarke, J., Garnett, G. and Hudson, J. (2015). Magna Carta. 3rd ed. Cambridge University Press, pp.422 - 439.

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Jowell, J. and Oliver, D. (2011). The Changing Constitution. 7th ed. Oxford: Oxford University Press, pp.122-130.

Neff, S. (2012). Hugo Grotius On the Law of War and Peace. 1st ed. Cambridge: Cambridge University Press, pp.11 – 56

Paperworth, N. (2014). Constitutional and Administrative Law. 8th ed. Oxford: Oxford University Press, pp.151-154.

Phillips, G. and Scott, K. (2017). Employment Law. 1st ed. Guildford: College of Law Publishing, pp.338-394

Pollard, D., Paperworth, N. and Hughes, D. (2007). Constitutional and Administrative Law, Texts with Material. 4th ed. Oxford: Oxford University Press, pp.292-294.

Rousseau, J. (1913). The social contract, and Discourses. 1st ed. J.M. Dent.

Smith, I. and Baker, A. (2017). Smith & Wood's Employment Law. 12th ed. Oxford: Oxford University Press, pp.320-375

Slapper, G. and Kelly, D. (2017). The English Legal System. 1st ed. Abingdon, Oxon: Routledge, pp.28-33, 41 -46

Syrett, K. (2014). The Foundations of Public Law - Principles and Problems of Power in the British Constitution. 2nd ed. London: Palgrave, pp.38-45 & 246-249

Wheare, K.C. (1966). Modern constitutions. 1st ed. London: Oxford University Press, p.1.

Woods, L. and Watson, P. (2017). EU LAW. 14th ed. Oxford: Oxford University Press, pp.85 -90.

Journal Articles –

Ford, M. (2016). Brexit and Labour Rights – A Personal Viewpoint. [online] Available at: http://research-information.bristol.ac.uk/files/74588016/Brexit_viewpoint.pdf [Accessed 10 Apr. 2017].

Landau, P. (2016). What would leaving the EU mean for your employment rights?. [online] The Guardian. Available at: https://www.theguardian.com/careers/2016/may/24/what-would-leaving-eu-mean- -employment-rights [Accessed 10 Apr. 2017].

Websites –

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Acas.org.uk. (2017). Gender pay gap reporting | advice and guidance | Acas. [online] Available at: http://www.acas.org.uk/index.aspx?articleid=5768 [Accessed 10 Apr. 2017].

Employment Law Post-Brexit Briefing Paper. (2016). 1st ed. [PDF] London: Fieldfisher LLP. Available at: http://www.fieldfisher.com/media/4372536/employment-law- post-brexit-june-2016.pdf [Accessed 10 Apr. 2017]. European Union website, the official EU website - European Commission. (2017). Court of Justice of the European Union (CJEU) - European Union website, the official EU website - European Commission. [online] Available at: https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en [Accessed 13 Apr. 2017].

Fincham, A. (2016). Brexit’s effect on national employment law may be limited - People Management Magazine Online. [online] Www2.cipd.co.uk. Available at: http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/03/04/br exit-s-effect-on-national-employment-law-may-be-limited.aspx [Accessed 4 Apr. 2017].

Gender Pay Gap Reporting Guide. (2017). 1st ed. [PDF] London: CIPD, p.3. Available at: https://www.cipd.co.uk/Images/gender-pay-guide-revised_tcm18-19647.pdf [Accessed 10 Apr. 2017].

Gov.uk. (2017). Maternity pay and leave - GOV.UK. [online] Available at: https://www.gov.uk/maternity-pay-leave/pay [Accessed 4 Apr. 2017].

Gov.uk. (2017). Maximum weekly working hours - GOV.UK. [online] Available at: https://www.gov.uk/maximum-weekly-working-hours/overview [Accessed 25 Jan. 2017].

Owlcation. (2017). John Locke vs Thomas Hobbes: Founders of Modern Political Science. [online] Available at: https://owlcation.com/social-sciences/John-Locke-vs- Thomas-Hobbs-Founders-of-Modern-Political-Science [Accessed 16 Apr. 2017].

Philosophy & Philosophers. (2017). Hobbes vs Locke: State of Nature. [online] Available at: http://www.the-philosophy.com/hobbes-vs-locke [Accessed 16 Apr. 2017].

Sparknotes.com. (2017). SparkNotes: The Social Contract: Analytical Overview. [online] Available at: http://www.sparknotes.com/philosophy/socialcontract/section1.rhtml [Accessed 16 Apr. 2017].

Suff, R. (2017). What will Brexit mean for UK employment law? - Policy at work - CIPD Blogs - CIPD Community. [online] Www2.cipd.co.uk. Available at:

51 http://www2.cipd.co.uk/community/blogs/b/policy_at_work/archive/2016/06/28/w hat-will-brexit-mean-for-uk-employment-law [Accessed 4 Apr. 2017]. www.gov.uk/government/publications. (2017). The United Kingdom's exit from and new partnership with the european Union. [online] Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/58 9191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf [Accessed 4 Apr. 2017]. Social Contract Theory (2017), Internet Encyclopedia of Philosophy. [online] Available at: http://www.iep.utm.edu/soc-cont/ [Accessed 16 Apr. 2017].

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