On 7 November 2023, the government laid regulations before Parliament to preserve important EU-derived equality protections in UK law. The draft Equality Act 2010 (Amendment) Regulations 2023 (the Amendment Regulations) are required as a result of the cessation of retained EU law at the end of 2023.
The EU-derived laws that are to be re-enacted apply, amongst other rights, to pregnancy and maternity discrimination, discrimination by association and equal pay. The Amendment Regulations will enable workers and employees to continue to rely on protections currently in place.
Direct discrimination related to pregnancy, maternity and breastfeeding
- UK law defines less favourable treatment on grounds of pregnancy and childbirth as direct sex discrimination. EU law extends this to include less favourable treatment on grounds of maternity. The Amendment Regulations add the word “maternity” into the Equality Act to preserve the scope of the protection against maternity discrimination.
- Treating a woman less favourably at work because she is breastfeeding will be included as unlawful discrimination. Under the Equality Act, as currently in force, “work” is expressly excluded from this type of discrimination. Women have had to rely on EU case law to claim direct sex discrimination if treated less favourably at work due to breastfeeding.
- The Equality Act currently prohibits pregnancy and pregnancy-related illness discrimination during the “protected period”. This covers the duration of the pregnancy and any statutory maternity leave period. By re-enacting EU case law, the Amendment Regulations will extend the protected period to include time after maternity leave to cover unfavourable treatment occurring after maternity leave has ended.
Indirect associative discrimination
Currently under the Equality Act, to bring a claim for indirect discrimination, the claimant themselves must have the relevant protected characteristic. However, EU case law has held that claimants can, in certain circumstances, establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group. The EU approach was applied in a recent employment tribunal case where a claimant successfully claimed indirect associative discrimination on the grounds of disability when she was required to return to the office full-time. She had caring responsibilities for her disabled mother and successfully argued the office policy indirectly discriminated against her, even though she herself was not disabled. The Amendment Regulations will insert a specific clause into the Equality Act specifying that claimants without the protected characteristic themselves can bring claims of indirect associative discrimination if they are associated with someone who does.
Direct discrimination relating to access to work
The Equality Act does not specifically prohibit discrimination relating to hiring which occurs outside an active recruitment process. Essentially, if an employer makes a comment about not wanting to employ people with certain protected characteristics, but the comment is outside an active recruitment process, it will not be unlawful. This is not the case in EU law – even if there is no identifiable victim, if an employer makes such comments, they can be liable for direct discrimination. The Amendment Regulations insert a new section into the Equality Act which will prohibit discriminatory statements made to the public or a section of the public in connection with decisions about to whom to offer employment.
Equal pay where employees’ terms are attributable to a single source
The Equality Act requires a woman bringing an equal pay claim to compare her contractual terms with a comparable man who is employed by the same or an associated employer, either at the same establishment or a different establishment where common terms apply. The Treaty on the Functioning of the European Union has no requirement for comparators to have the same or an associated employer. The only test is the “single source test” (i.e. a single body must be responsible for the alleged inequality of terms and have the ability to restore equal treatment). The Amendment Regulations will codify the single source test into a new subsection of the Equality Act and add a further subsection whereby workers governed by the same collective agreement can also be considered comparators.
Definition of disability
The Equality Act currently defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. The Amendment Regulations, following EU case law, will insert a new paragraph stipulating that references to a person’s ability to carry out normal day-to-day activities include a person’s ability to participate fully and effectively in working life on an equal basis with other workers.
The Amendment Regulations mark a significant development by enacting protections based on EU law directly into UK law and so preserving those protections which have been relied upon for many years in some cases. The Amendment Regulations are subject to approval by both Houses of Parliament but are expected to take effect on 1 January 2024.