Getting to grips with upcoming Equality Act changes

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Peninsula Team, Peninsula Team

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Amendments will be made to the Equality Act 2010 from 1 January 2024, subject to parliamentary approval that will bring clarity to post-Brexit discrimination law and enshrine a number of key employee rights onto the UK statute books. 

When the UK voted to withdraw from the EU, it started a process of significant legal change. The Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) will come into force at the end of 2023 and will bring with it a removal of the requirement for UK employment judges to interpret UK law in line with EU case law. It is therefore now necessary for rights derived from EU case law to be codified into the UK statute books or face their loss.

Eight principles will be reproduced by amendments to the Equality Act 2010 from 1 January 2024, if approved by Parliament. It is important to remember that the law isn’t changing but these amendments are needed to ensure that the tribunals can continue to interpret UK law in line with the principles derived from EU case law.

Here is a round-up of some of the main ones.

Definition of disability in relation to employment and occupation

A person is disabled under the Equality Act 2010 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 will be made to the Equality Act 2010 so that ‘normal day to day activities’ will continue to include the ability to participate fully and effectively in working life on an equal basis with other workers.

Right to equal pay where employees’ terms attributable to a single source 

Under the Equality Act 2010 men and women should receive equal pay for equal work but an actual comparator (rather than a hypothetical one) is required. This must be someone employed by the same or an associated employer and either at the same establishment or at a different establishment at which “common terms” apply. UK law will be amended to reflect the EU position so that a comparison can be made where there is a single body responsible for setting or continuing the terms on which the claimant and their comparator are employed.

Direct discrimination related to pregnancy, maternity, and breastfeeding

The Equality Act 2010 currently protects women from direct sex discrimination if they are treated less favourably because they are breastfeeding, but this is expressly excluded from applying at work. EU case law, however, found that sex discrimination at work includes less favourable treatment because of breastfeeding. Amendments will be made, therefore, to allow this to continue.

The word ‘maternity’ will be inserted into section 13 of the Equality Act 2010 to ensure that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct sex discrimination. Currently the Equality Act 2010 allows women special treatment in connection with pregnancy or childbirth, so this amendment will ensure that the scope of this protection continues to be wider.

Discriminatory public statements

Currently the Equality Act 2010 protects against discrimination by employers when deciding to whom to offer employment, but only during an active recruitment process and where there is an identifiable victim. EU case law established that there can be liability for direct discrimination if a discriminatory statement is made about not wanting to recruit people that share certain protected characteristics, even where there is no identifiable victim, and no recruitment process is underway. Amendments will be made so that this continues to apply.  

Whilst none of the amendments of the Equality Act 2010 represent a change in the law as such, they do provide clarity and certainty for employers and employees. They also ensure that employee rights remain protected and allay fears that Brexit would mean a reduction in employment rights.

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