Taking the long view, the WA is likely to be remembered for two matters: the position it takes on the protection of citizens’ rights (provisions which have the potential, as we shall see, to last for well over a century) and the provisions of the Protocol which could last indefinitely – or perhaps no longer than four years – depending on the outcome of consent votes in the Northern Ireland Assembly. This chapter looks primarily at the effect of the WA in the UK as a whole. It focuses on the implementation of the WA in UK law, the enforcement of rights under the Protocol, as they relate to the UK, and the position on citizens’ rights.

INTRODUCTION

Priti Patel MP, one of the leading proponents of leaving the EU, said to the Institute of Directors that ‘[i]f we could just halve the burdens of the EU social and employment legislation we could deliver a L 4.3 billion boost to our economy and 60,000 new jobs ’. Liam Fox MP, who became Secretary of State for International Trade, had expressed similar sentiments prior to the referendum campaign: ‘[t]o restore international competitiveness we must begin by deregulating the labour market. Political objections must be overridden’. His remarks re-emerged during the referendum campaign.

The Remain campaign, galvanised by these and other observations, responded. The StrongerIN website said:

Francis O ‘ Grady, General Secretary of the TUC, echoed these views:

The vote to leave on 23 June 2016 therefore suggested a victory for those calling for a smaller state and less (employment) regulation.

But the Prime Minister, Theresa May, who came into office in July 2016, did not appear to share those views.

INTRODUCTION

Nestled away in the panoply of EU equality legislation lies one directive which is little known and little loved. This is Directive 2010/41 on equal treatment for the self-employed. Its predecessor, Directive 86/613, was equally neglected. The very concept of employment rights for the self-employed is already an oxymoron. Why should the self-employed, a group seen as independent and autonomous, need or deserve employment protection? Surely the customers ‘right to choose their supplier is the paradigm of contractual autonomy and the law should not interfere with their decision-making?

Yet, as labour lawyers well know, those who describe themselves as self employed often manifest many of the characteristics of employees – they may in practice be dependent, have inferior bargaining power and they risk exploitation. Even those who do not match this description still need to have access to the labour market: there is no point in being'self- ‘without being ‘employed’. As section 2 shows, the numbers of self-employed are increasing, and women feature prominently in that group. Moreover, with the rise of new forms of working, including via online platforms like Airbnb, it is likely that the number of self-employed will carry on increasing. But empirical evidence shows that these online platforms tend to favour white men. This directly speaks to the concerns of equality law. So, at first sight, a directive giving protection against discrimination to the self-employed makes a lot of sense.

However, one of the most vexed issues in equality law is scope: who can rely on discrimination law and who is subject to it? Section 3 considers the personal scope of the existing EU equality directives and the duty holders under those directives. This examination of the scope of the existing directives reveals a lacuna: at present the self-employed can be the subject of the equal treatment principle but may be able to invoke it only in vertical situations, i.e. against the state. They cannot invoke it horizontally in private contexts, for example where a female plumber is not selected by a potential client from a website where she offers her services.