WHAT HAS BROUGHT ABOUT THE CHANGE?

The Equality Act (“EqA”) 2010 (Amendment) Regulations 2023 (“the Regulations”) will amend the EqA 2010 to protect certain rights against discrimination derived from EU law, so they are not lost by the Retained EU Law (Revocation and Reform) Act 2023.

WHEN DO THE REGULATIONS COME INTO EFFECT?

01 January 2024

WHERE CAN I READ THE DRAFT REGULATIONS?

Here: https://www.legislation.gov.uk/ukdsi/2023/9780348253191/contents

WHAT ARE THE CHANGES I NEED TO KNOW ABOUT?

(1) PREGNANCY, MATERNITY AND BREASTFEEDING

• Less favourable treatment on the ground of breastfeeding constitutes direct sex discrimination;
• Pregnancy and maternity discrimination can occur after the “protected period” (i.e. after a woman has returned from maternity leave), if the unfavourable treatment is in connection with their pregnancy or pregnancy-related illness;
• The right applies to women on or with a right to leave equivalent to compulsory, ordinary, or additional maternity leave.

(2) (ASSOCIATIVE) INDIRECT DISCRIMINATION

• One can claim indirect discrimination on the basis of an association with a protected characteristic – i.e. if the claimant is (or would be) put at “substantively the same disadvantage” as those with the relevant protected characteristic.

[See CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] IRLR 746]

(3) DISCRIMINATORY STATEMENTS

• It will be a breach to make a discriminatory statement regarding recruitment, even when there is not an active recruitment process underway.

(4) EQUAL PAY COMPARATORS

• An equal pay comparison can be made where there is a “single source” that is responsible for employment terms of the claimant and comparator, and which is in a position to ensure equal treatment between them.

[See Lawrence and others v Regent Office Care Limited and others [2003] ICR 1092]

(5) DISABILITY DEFINITION

• References to a person’s ability to carry out normal day-to-day activities include their ability to participate fully and effectively in working life on an equal basis with other workers.

[See HK Danmark v Dansk almennyttigy Boligselskab and another [2013] ICR 851]

Louisa Simpson