Equality Law and Employment Law after Brexit

Applications are invited for a self-funded, 3 year full-time or 6 year part-time PhD project.

The PhD will be based in the School of Law and will be supervised by Dr Michael Connolly.

Much, but all, of the UK’s equality and employment law has been driven by EU legislation and its developing case law. After the Brexit implementation period, a body of retained EU law was created, preserving the effect of all EU law as it stood at that point (EU (Withdrawal) Act 2018, ss 2-4).

The Retained EU Law (Revocation and Repeal) Act 2023 (REUL 2023) took Britain another legal step away from EU law. The new provisions came into effect on 1 January 2024. ‘Retained EU law’ has become ‘assimilated EU law’.

The Act put an end to all the ‘rights, powers, liabilities etc’ arising via the EC Act 1972. This includes certain directly effective Treaty rights, such equal pay and nationality discrimination, and employment and equality Directives. It means that British courts could no longer entertain claims reliant upon any EU equality legislation via the ‘conduit’ of the 1972 Act. This has occurred where there is a gap between British and EU employment or equality rights. Parliament has legislated to close some of these gaps (see e.g. SI 2023/1425), but it is arguable that many remain.

From 1 January 2024, Supremacy of EU law will end: ‘direct EU legislation’ must be read compatibly with domestic enactments, and if not possible, the domestic enactment(s) should prevail. However, the legislation is silent on UK law derived from Directives and Treaty Articles (principal sources of UK equality law). There is an element of uncertainty here.

Also, ‘No general principle of EU law is part of domestic law after the end of 2023’. This completes the post-2021 exclusion of the EU’s Charter of Fundamental Rights, which is reflective of these general principles. Hence, EU general principles of equality and proportionality can no longer be relied upon in British courts. Proportionality is likely to survive, but this is not certain.

EU case law prior to 1 January 2021 is binding, unless the Court of Appeal or Supreme Court (or Scotland’s High Court of Justiciary) decided to depart from it. Nowadays, when doing so they must have regard to relevant changes in circumstances and ‘the extent to which the assimilated EU case law restricts the proper development of domestic law’. The legislation provides the same suggestions, when stating that these ‘higher’ Courts can depart from their own assimilated domestic case law, but this time, only ‘if it considers it right to do so’.

It is apparent even from this short overview, that there are many areas of uncertainty which would benefit from investigation and analysis. Research could consider the potential benefits and problems in this area. This could examine, for example, the theoretical, political, economic, or social, bases for any of the assimilated EU employment or equality rights, and/or anything that may be persuasive or relevant to their interpretation. It could consider the common law and its potential to develop a general principle of equality, or how the Human Rights Act 1998 might fill some gaps created by secession from the EU.

Fees and funding

Visit the research subject area page for fees and funding information for this project.

Funding availability: Self-funded PhD students only. 

PhD full-time and part-time courses are eligible for the UK Government Doctoral Loan (UK and EU students only – eligibility criteria apply).

Bench fees

Some PhD projects may include additional fees – known as bench fees – for equipment and other consumables, and these will be added to your standard tuition fee. Speak to the supervisory team during your interview about any additional fees you may have to pay. Please note, bench fees are not eligible for discounts and are non-refundable.

We’d encourage you to contact Dr Michael Connolly (michael.connolly@port.ac.uk) to discuss your interest before you apply, quoting the project code.

Please also include a research proposal of 1,000 words outlining the main features of your proposed research design – including how it meets the stated objectives, the challenges this project may present, and how the work will build on or challenge existing research in the above field. 

When applying please quote project code:LLAW4951024