The Facts
On 7 November 2023, the government laid draft Regulations before Parliament to allow workers and employees to rely on directly effective protections under EU derived laws which would otherwise have fallen away in the Government's post-Brexit legal reform. The preserved protections amend the Equality Act 2010 and include:
- providing 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 claimant and comparator are employed. This ‘single source’ test for establishing an equal pay comparison reflects the position under EU law that a single body must be responsible for the alleged inequality of terms and have the ability to restore equal treatment. EU law does not require the comparators to be employed by the same or an associated employer which, as currently worded, is the position in the Equality Act.
- providing the right to claim indirect discrimination by association. Currently under the Equality Act, the person bringing an indirect discrimination claim must have the relevant protected characteristic themselves. Associative discrimination is only currently available for direct discrimination or harassment claims. The amendment to the Equality Act allows someone to bring a claim if they suffer substantively the same disadvantage as the person with the protected characteristic.
- expanding the definition of disability that takes into account a person’s ability to participate in working life on an equal basis with other workers when considering their ability to carry out normal day to day activities.
- giving protection for breastfeeding mothers at work from less favourable treatment on the ground of breastfeeding which constitutes direct discrimination on the ground of sex. Currently the Equality Act provides protection from direct sex discrimination if a woman is treated less favourably because of breastfeeding but this does not apply to discrimination at work.
- providing protection against discrimination on grounds of pregnancy and maternity after the “protected period” as well as during it where the unfavourable treatment is because of the pregnancy or pregnancy-related illness during the protected period;
- affording special treatment to women in relation to maternity as well as pregnancy and childbirth in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave. Currently the Equality Act only refers to pregnancy and childbirth; and
- creating a liability equivalent to direct discrimination for employers if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway.
What does this mean for employers?
None of these protections are new and the law has not changed. Indeed, the purpose of these changes is to ensure that the Equality Act 2010 continues to be interpreted in line with EU jurisprudence after 31 December 2023, so employees retain their rights. However, the fact these rights will be set out in legislation may well heighten awareness of these protections. Employers may therefore have more questions about these rights. There is also scope for satellite litigation about them, particularly how associative indirect discrimination will work in the employment context.
