Retained EU Law (Revocation and Reform) Act 2023: impact on equal pay framework
The Government has confirmed that EU-derived equal pay protection will be replicated within our domestic legal framework after a raft of EU law is repealed at the end of 2023.
600 pieces of EU law to be scrapped
After a turbulent passage through Parliament, a stripped back version of the Retained EU Law (Revocation and Reform) Act (Act) received Royal Assent earlier this year. The Act will repeal around 600 specific pieces of legislation from the end of this year. This forms part of the Government's plans to end the supremacy of EU law and speed up the process of reforming retained EU law.
Impact on equal pay rights
Equal pay rights derive from both EU and domestic law. Under the Equality Act 2010, men and women are entitled to receive equal pay for equal work. Equal pay claimants are entitled to contractual terms that are as favourable as those of a comparator of the opposite gender.
Under domestic equal pay law, a claimant and comparator must be (or have been) employed by the same employer or by associated employers, either at the same establishment or at different establishments where common terms apply.
However, under EU law, some proposed comparisons that fall outside this test might nevertheless be permitted. Article 157 of the Treaty on the Functioning of the European Union (TFEU) allows comparisons to be made in equal pay claims between workers whose terms and conditions are attributable to a single source. It is not necessary for the claimant and comparator to be employed by the same employer or even associated employers in order to rely on Article 157.
The TFEU is due to be removed under the Act and this has led to criticism and concern about the impact on domestic equal pay rights. The Government has now confirmed it intends to preserve the Article 157 equal pay rights through secondary legislation, which it says it will deliver before the end of the year.