The Supple Uses of EU Law: Fighting Gender Discrimination

 

Amid the continuing debate about Brexit and whether or not the UK should leave the European Union and if so when, the continuing benefit of EU law in the UK legal order is often missed. Although the UK has its own Human Rights Act 1998 and indeed the common law supplies a few fundamental rights upon which people may rely in UK courts, EU law is also a rich source of law that can protect and entrench fundamental rights. UK law does some things and EU law does others. They are complementary.

In the field of gender discrimination, the UK has the Equality Act 2010. This creates some private causes of action for discrimination, harassment, and victimisation on grounds of gender, as well as a public sector equality duty.  However, this piecemeal approach is a far cry from entrenching a higher order prohibition on gender discrimination that may be used to interpret and supplement laws where gender discrimination arises in order to remove the effect of such treatment. By contrast, EU law does so within its limited areas of competence and scope. A prohibition on gender discrimination is a general principle of EU law to be deployed as required to remove gender discrimination and secure equal treatment.

EU law continues to be a benefit to people who might not otherwise be able to rely on fundamental rights. The fact that EU Treaty law is a form of primary law in the United Kingdom creates an entrenched set of fundamental rights upon which people may rely when they fall within the scope of EU law. In this context, it is particularly useful for EU Citizens who move exercising rights of free movement come to the UK in order to work. This includes not only employees but also the self-employed.

In UK immigration law there is no simple route for self-employed people to come to the UK from third countries. However, in EU law there is a right to establishment under Article 49 of the Treaty on the Functioning of the European Union (‘TFEU’) that allows EU Citizens from other member states to come to the UK for the purpose of work as self-employed persons. Both male and female EU Citizens from other EU states have come to the to work in reliance on this fundamental freedom.

The position of women who are both workers and self-employed may be impacted by periods of pregnancy and maternity. Such periods may deprive them temporarily of their ability to be economically active. In the period immediately prior to birth and in the maternity period afterwards a female EU citizen may be unable to work. In these circumstances any right to reside under EU law (the Citizens’ Directive, 2004/38/EC) would ordinarily drop away if she was not otherwise self-sufficient. But other sources of EU law may act to avoid gender discrimination on grounds of pregnancy and maternity.

Article 45 TFEU, which provides for the free movement of workers, and Article 49 TFEU which provides for the freedom of establishment for the self-employed, are given further effect in Directive 2004/38/EC. That Directive provides for ways in which economically active EU Citizens, moving from their home state to another EU state, may retain their rights of residence in the host member state when they cease to economically active. But it makes no provision for pregnant women and for women who are out of work during periods of maternity. In the case of Saint Prix v Secretary of State Work and Pensions(C-507/12), the Court of Justice of the European Union (‘CJEU’) held that a person who ceases work in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of child birth retains the status of Worker  (and thus remains lawfully resident and eligible for social assistance) provided that she returns to economic activity or seeking work within a reasonable period after giving birth to her child.

In the case of the HMRC v HD (C-544/18), a case in which I am acting as Counsel for Ms HD (along with my colleague Desmond Rutledge), following a hearing on 5 June 2019 the CJEU will now decide whether the equivalent principle applies for self-employed women who are forced to cease economic activity as a result of pregnancy and maternity but who need to retain a lawful right of residence in the UK under EU law during the period that they are off work but still present in the UK. The rights of such women to reside in the UK are found in EU law. But in the absence of a Treaty provision or Directive covering their status during periods of pregnancy and maternity, the CJEU is asked to rule on whether or not they can retain self-employed status therefore continue to be lawfully resident. If they are able to retain self-employed status, they will have access to social assistance in the form of Child Benefit and other benefits whilst pregnant and caring for their new-born infants.

Child Benefit in common with many other UK social assistance benefits has a right to reside test which means that a person has to prove that they hold a qualifying immigration status in order to be eligible to apply for the benefit. If Ms HD cannot show that she continues to retain the status of self-employed during her period of pregnancy and maternity, she will not be entitled to claim Child Benefit for her new-born child. In the absence of a positive ruling from the CJEU, a female as opposed to a male EU citizen coming to the UK may be hindered or obstructed in the exercise of her rights of residence in the UK.

The male pattern of employment is such that men rarely are expected to take paternity leave prior to or following the birth of a child. Currently paternity leave, in the United Kingdom is limited to two-weeks off-work. In this context, a male self-employed EU citizen does not cease to hold that status merely because his partner is pregnant or off work during the period of pregnancy and maternity. He continues to enjoy a right to reside.

The question in the HD case is whether or not a self-employed female EU citizen can retain her status and right to reside in the UK during the period she is off work due to pregnancy and maternity. If she cannot then the EU law does nothing to enable her to continue to be economically active in the UK on an equal basis to her male counterpart. It is women only who become pregnant. In these circumstances the impact of not being able to retain a right of residence during the period of pregnancy and maternity deprives women only of the ability to retain their status as economically active persons, in the UK.

In the Saint-Prixcase the CJEU acted in order to protect the position of women who fell pregnant whilst being employed in the UK. It is to be hoped that the CJEU takes the same view in respect of self-employed women in the HD case. The UK Government is resisting this development. It argues that there are relevant differences in the position between self-employed and employed women. In substance it argues that the question of whether or not a self-employed woman can return to work depends on her will to do so and, further, that she has the opportunity to substitute someone else for her own work in order to perform the work that she does as self-employed. It also argues that women may continue to maintain their businesses and the associated good will while not actually trading during pregnancy and maternity and thus be able to retain self-employed status.

The UK’s stance takes no account of the fact that most women who are self-employed in the United Kingdom act on their own account, effectively as sole traders. Substitution of one person for another to perform a service contract is not realistic. Moreover, it is not a question of will as to whether and when a woman returns to work following pregnancy and maternity but a question of whether or not the woman’s health is sufficiently restored and whether the care needs for her child are catered for adequately. In addition, the notion that such a woman should be expected to keep her business ticking over (even if not trading) during her pregnancy and maternity imposes a double burden on her (to do some work while also dealing with pregnancy and maternity) and creates a burden that only a woman as opposed to a man has to bear. Not only is that discriminatory, it also may influence a woman’s choice as to whether or not to have a child in an impermissible way.

A female self-employed EU citizen who seeks to retain her self-employed status will have paid tax and National Insurance contributions in the UK. She should not be placed in the situation of a person who has recently arrived in the UK seeing work and excluded from social assistance. It is right that she should be able to retain her self-employed status in order to be able to maintain the exercise of her freedom to move and reside in the United Kingdom for self-employed purposes. If it were otherwise, where she could not lead an ordinary working life in the UK, including, where applicable, becoming pregnant and having a child, she would be deterred from exercising her rights of freedom of movement.

EU law offers better protection against gender discrimination than UK law as regards women who come to the UK to work. Notwithstanding the Equality Act 2010, there is no general approach to enforcing gender equality which constrains the Immigration Rules in the provision they make for non-EU citizens/third country nationals who come to the UK and work. The situation of non-EU citizen/third country national women who come to the UK for work but who cease work on grounds of pregnancy or maternity and who cease to hold a contract of employment is entirely different to that of the their EU citizen equivalents. There is no general principle of UK law that enables them to retain, and if necessary extend, their permission to remain in the UK.

The continuing utility of EU law is that it provides a set of European regional standards, both in the general principles of EU law and in the Regulations and Directives adopted by the EU legislature, that give further effect to fundamental rights and extend protection to people who require the exercise of those rights in order to protect the lives that they lead. Amid all the clamour surrounding whether or not the UK should leave or stay in the EU, it should not be forgotten that the European Union is an important source of fundamental rights protection.

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