Equality Act 2010: Five new amendments the retail sector need to know about
Charlotte Rees-John: Draft legislation has been published by the Government which will amend the Equality Act 2010 from 1 January 2024.
The Equality Act 2010 (Amendment) Regulations 2023 consolidate specific discrimination protections derived from EU caselaw that would have otherwise ceased to exist at the end of this year as a result of the government’s approach to Brexit.
Background to the amendments:
Following the UK’s exit from the EU, the government put in place arrangements to preserve laws derived from the EU into the UK’s domestic legal framework, for a limited period, to give it time to evaluate those it wanted to repeal, amend or replace.
The Retained EU Law (Revocation and Reform) Act 2023 (the Act) was designed to speed up that process. From the end of 2023, courts aren’t bound to interpret EU retained law in line with the underlying Directives, the principle of supremacy of EU law and all directly effective EU rights will go too. To avoid the legal uncertainty this would cause in the context of employment, the government will amend the Equality Act to ensure that tribunals continue to interpret UK equality law in line with decided EU cases.
The law isn’t changing. 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 will make the written law clearer for both employers and employees to understand and interpret, but some uncertainties remain and will, no doubt, have to be tested in the courts. On that point, it’s worth noting that the Act gives lower courts the ability to refer a point of law to the Court of Appeal or Supreme Court to determine.
Key changes
- 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. New wording will be added to ensure that when evaluating normal day to day activities, a person’s ability to participate fully and effectively in working life on an equal basis with other workers must be considered.
- Protection for breastfeeding mothers
Currently, section 13 protects women from direct sex discrimination if they are treated less favourably because they are breastfeeding. However, this right is expressly stated not to apply to discrimination at work. The government will remove this exclusion and, in doing so, signal to women that if they are treated less favourably at work because they are breastfeeding, they will be able to bring direct sex discrimination claims against their employers.
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. However, it’s not clear if changing the legislation in this way this will give women the green light to demand the right to breastfeed at work – an argument that has previously been rejected by a first instance tribunal.
- Special treatment given to women in connection with pregnancy, childbirth or maternity
Section 13 of the Equality Act currently allows women to be given special treatment in connection with ‘pregnancy or childbirth’. EU case law goes further than this and makes it clear that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct sex discrimination. The government is adding the word ‘maternity’ into the relevant provisions to ensure that tribunals continue to interpret the law expansively.
Section 18 prohibits pregnancy and maternity discrimination during the ‘protected period’ (the duration of the pregnancy and any statutory maternity leave). If the unfavourable treatment takes place after the end of the protected period but results from a decision taken during the protected period, it will be regarded as having taken place during that period. But protection does not extend where the unfavourable treatment takes place after the woman returns to work and can’t be related back to a decision made during the protected period. The new regulations will plug that gap.
- Indirect associative discrimination
Section 19 of the Equality Act provides that indirect discrimination may occur where A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
However, the requirement for B to have the protected characteristic is inconsistent with EU law. The amended wording will allow B to bring a claim, even if they don’t share the protected characteristic, provided they can demonstrate that they suffer the same disadvantage.
This could mean, for example, that men with childcare responsibilities may be able to use similar indirect sex discrimination arguments deployed by women looking for family-friendly working arrangements. In addition, workers who care for family members who are disabled, may also be able to argue that requiring them to work full-time or office-based, may amount indirect disability discrimination.
- Equal pay claims
The Equality Act provides that men and women should receive equal pay for equal work. A women must be able to point to an actual comparator who is employed by the same employer or an associated employer. Under the Treaty on the Functioning of the European Union, workers don’t have to the same employer; the test is that their terms and conditions must be attributable to a single source.
The Equality Act will be amended to make it clear that an equal pay comparison can be made where there is a single body that is responsible for setting or continuing the terms on which the worker and comparator are employed.
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