Equality Act to get EU upgrade

The Retained EU Law (Revocation and Reform) Act 2023 triggered concerns about the future of domestic employment law, which originated in the EU. New draft regulations, The Equality Act 2010 (Amendment) Regulations 2023 which are planned to come into force on 1 January 2024 provide welcomed clarity on the issue in respect of the Equality Act 2010, writes David Leach.

The key updates are as follows:

“Single Source”

A new subsection will be inserted, s79(4A) EqA, which provides a definition of a valid comparator for equal pay claims. This amendment will mean that a comparison can be made where there is a singular body (“single source”) responsible for setting or continuing the terms and conditions on which the claimant and proposed comparator are employed, and where this organisation is able to ensure that there is equal treatment between the claimant and comparator. This new subsection incorporates the test set out on the 2003 European Court of Justice case (“ECJ”) of Lawrence and ors v Regent Office Care Ltd and Ors 2003 ICR 1092 on the right to equal pay under Article 157 of the Treaty on the Functioning of the European Union (“TFEU”).

Indirect Discrimination

S19A is added to update the Act following the ECJ case of CHEZ Razprendeleing Bulgaria AD v Komisia za zashtita ot diskiminatsia 2015 IRLR 746, which held that a person who does not share a protected characteristic with a disadvantaged and protected group but who suffers the same particular disadvantage as that group can bring a claim of indirect discrimination. S19A states that a claimant will be subject to indirect discrimination if they can establish that  they have been put (or would be put) at the “substantively same disadvantage” as the persons who have the relevant protected characteristic.

Definition of disability

As employers and practitioners are aware, the definition of a disability is contained in s6 EqA – a “physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities”. However, this section does not give effect to the ECJ interpretation in HK Danmark v Dansk almennyttigt Boligselskab and another case 2013 ICR 851 when they rules that when considering disability it “must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation on the person concerned in professional life on an equal basis with other workers”.

Therefore, to align the EqA with this, a new paragraph (5A) will be inserted into Schedule 1. This provide that the reference to disability in s6 and specifically a “person’s ability to carry out normal day-to-day activities” is to incorporate reference to that person’s ability to “participate fully and effectively in working life on an equal basis with other workers”.

Other protections

• Unfavourable treatment on the ground of breastfeeding will constitute direct discrimination on the grounds of sex;
• Women are protected from unfavourable treatment after they return from maternity leave, where that treatment is in connection with the pregnancy or a pregnancy-related illness which occurred before their return. Currently there appears to be no limits on time after return to work that this type of claim could arise;
• Woman are protected from pregnancy and maternity discrimination where they have an entitlement to maternity leave, which is equivalent to compulsory, ordinary or additional maternity leave;
• Employers will be liable for conduct which is akin to direct discrimination if a discriminatory statement is made regarding recruitment, even if the employer does not have an active recruitment process underway at the time of the statement.

Commentary

Whilst many employers will already be committed to maintaining a diverse and inclusive workplace, consolidating these protections and definitions will create clarity.

If any employer wishes to discuss these Regulations or need further guidance on reducing discrimination in the workplace, please reach out to David Leach or anyone else in the Employment Team who will be happy to assist.

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