The Government has published draft legislation to amend the Equality Act 2010 with effect from 1 January 2024. The Equality Act 2010 (Amendment) Regulations 2023 brings together protection from discrimination rights derived from EU law – which would otherwise have disappeared at the end of this year due to Brexit.
Background to the amendments
The law isn’t changing as such. Instead, the Equality Act is being rewritten to codify EU discrimination caselaw that tribunals, and higher courts, already factor into their decision-making processes.
The amendments should make the written law clearer for both employers and employees to understand and interpret.
Expanded definition of disability
Under the current Equality Act 2010, a person is disabled if they have a “physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day to day activities.“ An amendment to the guidance means that an employer will have to also consider a person’s ability to participate fully and effectively in working life on an equal basis with others in the workplace.
Protection for breastfeeding mothers
The law currently excludes a direct discrimination claim from women who have been treated less favourably because of breastfeeding at work. The exclusion will be removed.
Less favourable treatment will include a failure to undertake a personal risk assessment for a returning mother or failing to provide suitable facilities for her to store and express breast milk. It is not clear if the change to the legislation will entitle women to demand the right to breastfeed at work.
Special treatment given to women in connection with pregnancy, childbirth or maternity
Section 13 of the Equality Act gives women special treatment in connection with ‘pregnancy or childbirth’. EU case law goes further and makes it clear that unfavourable treatment related to maternity is also direct sex discrimination.
Section 18 prohibits pregnancy and maternity discrimination for a ‘protected period’ (the duration of the pregnancy and any statutory maternity leave). If the discrimination takes place after the end of the protected period but the decision was taken during the protected period, it will be regarded as having taken place during that period. The amendment will now make it easier to protect women if the unfavourable treatment takes after she returns to work.
Indirect associative discrimination
Section 19 of the Equality Act makes it unlawful for a for an employer to apply a provision, criterion or practice which indirectly discriminates against someone because they have a protected characteristic and someone else does not. The law will change to give the worker a right to a claim they have been discriminated against because they “associate” with someone who does have that protected characteristic.
- Workers who care for family members who are disabled, may be able to argue that requiring them to work full-time or office-based, may amount indirect disability discrimination.
- Men with childcare responsibilities may be able to use similar indirect sex discrimination arguments used by women looking for family-friendly working arrangements.
Equal pay claims
The Equality Act provides that men and women should receive equal pay for equal work. A woman must be able to point to an actual comparator who is employed by the same employer or an associated employer.
The Act will be amended to make it clear that an equal pay comparison can be made where there is a single body/source responsible for setting the terms on which the worker and comparator are employed.
16th November 2023