What the Protocol means for employment and equality law in Northern Ireland

Following Brexit, special arrangements were put in place to allow Northern Ireland to remain part of the European Union (EU) customs union and to protect certain “individual rights”. This was due to Northern Ireland’s unique position as the only part of the UK to share a land border with an EU member state, as well as the key role EU laws have played in securing and ensuring peace in the region as part of the Belfast or “Good Friday” Agreement. The arrangements relating to individual rights are set out in Article 2 of the Protocol on Ireland/Northern Ireland (Article 2).

This insight summarises the key employment aspects of Article 2 and its potential implications for employment and equality law in Northern Ireland. In the attached Inbrief Employment Partner, Ciara Fulton, considers the impact of Article 2 on the employment laws and rights of people working in Northern Ireland in more detail.

Equality and anti-discrimination protection

Article 2 provides that there should be no diminution of the rights, safeguards and equality of opportunity provisions set out in the Good Friday Agreement as a result of the UK leaving the EU. This provides important equality and anti-discrimination protection for individuals in Northern Ireland, including the Good Friday Agreement rights to freedom and expression of religion and the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity.

As certain EU Directives underpin the Good Friday Agreement rights, these are also protected by Article 2. This includes Directives that deal with discrimination on grounds of protected characteristics (gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation) and promote equal treatment. Article 2 therefore ensures that the minimum standards required by these Directives continue to apply in Northern Ireland post Brexit.

Requirements not to diminish the protection

The UK Government has committed to ensuring that the Good Friday Agreement rights are not diminished as a result of the UK leaving the EU, and to do this through the “dedicated mechanism”. This has three implications:

• If such a diminution occurs, the UK Government is legally obliged to ensure that rights’ holders are able to bring challenges before the domestic courts, and that appropriate remedies are available.

• If the EU Directives referred to in Article 2 are updated or enhanced, then relevant domestic law in Northern Ireland should be amended to reflect this.

• It also appears to mean that future best practice developments in the area of human rights and equality in the UK and EU must be taken into consideration as the commitment is implemented.

Ensuring compliance with the commitments – the dedicated mechanism

The UK agreed to implement its commitment to the no diminution principle by establishing a “dedicated mechanism” drawing on the existing human rights and equality bodies established under the Good Friday Agreement, namely the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, as well as drawing on the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland. Together these bodies are jointly responsible for monitoring and ensuring that the Article 2 protections are in place and that regular reports are provided to the UK Government, the Northern Ireland Executive, or the Irish Government, as appropriate. They also have powers to promote awareness of Article 2, to bring or intervene in legal proceedings in respect of alleged breach of Article 2 and have the power to assist persons in relevant proceedings.

Future employment and equality changes

Significant changes in Northern Irish equality laws are unlikely in the short term and changes in other employment laws will be subject to the usual consultations and legislative process.

However, what is less clear is how Northern Irish employment and equality laws will depart from or indeed evolve in line with the Republic of Ireland as a result of the Protocol in the years to come.

The UK Government has expressed its view that the Good Friday Agreement does not require North South equivalence of rights and equality protections. However, it recognised that there was a role for the dedicated mechanism to consider best practice in the area of human rights and equalities issues insofar as they have an island of Ireland dimension. This suggests that Northern Ireland will look to developments and best practice in Ireland in assessing compliance with Article 2, and perhaps more widely.

Workers who may be considering working in the Republic of Ireland are likely to view developments such as the new Gender Pay Gap Information Act 2021, the Protected Disclosures (Amendment) Bill 2021 (which will implement the EU Whistleblowing Directive), as well as progressive initiatives such as the new Code of Practice on the Right to Disconnect, and the expected legislation on the right to request remote working, as well as a public campaign for a four-day working week, positively. It is not clear whether Northern Ireland will keep pace with such developments or indeed whether or not this will be required to ensure compliance with Article 2.

Key takeaways

• As a result of Article 2 of the Protocol, Northern Ireland remains aligned to certain EU laws post Brexit, specifically the Directives underpinning the Good Friday Agreement rights.

• Existing Northern Irish and Irish bodies act as a dedicated mechanism to monitor the implementation of Article 2 and to ensure individuals can enforce their rights.

• Northern Ireland may keep pace with Republic of Ireland developments where they have an EU dimension (in line with Article 2), potentially not otherwise.

• This is a new and rapidly developing area. Therefore, this is not definitive and remains subject to the developing jurisprudence and guidance in the area as well as ongoing political developments.