Sarah Gilzean, Partner in the employment law team and accredited specialist in discrimination law, discusses the impact that the revocation of retained EU laws in the UK will have on equal pay protection.
Legislation revoking retained EU laws would have reduced equal pay protection
The Retained EU Law (Revocation and Reform) Act 2023 ("the Act") hit the headlines from the second it was introduced by the UK Government in September 2022. While it was advertised as a way of allowing the UK Government to create regulations "tailor-made to the UK's needs" it also ignited significant concerns from both businesses and employee organisations given the degree of uncertainty it created. During a bumpy passage (both through the houses of parliament and in the press) the initial approach of potentially significant amounts of retained EU law being scrapped via a "sunset clause" at the end of 2023 was changed to the inclusion of a schedule of approximately 600 specified pieces of legislation that will be revoked. This certain provided a degree of certainty for employers, and from an employment law perspective when the "revocation list" was published there was no significant piece of employment legislation included.
However, the Act also abolishes directly effective rights, brings an end to the principle of supremacy of EU law and removes EU interpretative principles from UK law. Directly effective rights derive from EU treaties and can in some cases be directly invoked by claimants before UK courts. From the end of this year, this will no longer be the case.
Impact on equal pay
Although the right to equal pay is protected under the Equality Act 2010, without steps being taken to preserve the effect of Article 157 of the Treating of the Functioning of the EU, that protection would have been reduced. Under Article 157 workers are able to pursue equal pay claims even if they work for different employers or in different locations, as long as their pay derives from a single-source that has the power to correct any pay discrepancy. Currently these provisions are being relied upon by many thousands of women in the UK who are employed by Asda and Tesco supermarkets. By relying on the direct effect of Article 157 they are able to compare themselves to men who are employed not at the supermarkets themselves, but at the supermarket's distribution depots. Previously these provisions have been relied upon by workers in the public sector, with Birmingham city council paying more than £1bn to settled claims that stretched back over many years. Abolishing the right to enforce directly effective rights would have left claimants unable to make this type of claim in future.
With a general election likely next year, at the end of August the Labour party announced its intention to reinstate the "single-source test" if it came to power. Within a matter of hours of that announcement a spokesperson from the UK Government's Equality Hub confirmed that there will be no reduction in the equal pay protections, and that new secondary legislation to preserve the singe-source test would be laid before Parliament "long before the end of the year".
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