Scrase Law Employment Solicitors

Changes to the Equality Act on the horizon

The Government has published draft regulations which will amend the Equality Act 2010.  The purpose of the amendments is to retain principles of discrimination law that would otherwise fall away after retained EU law ceases to have effect from the end of 2023 following Brexit. 

Some of the key amendments contained in the draft Equality Act 2010 (Amendment) Regulations 2023 (the Regulations) are set out below.

The definition of disability

Disability is currently defined in the Equality Act as a physical or mental impairment which has a substantial long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.  Under the Regulations, consideration of an employee’s ability to carry out normally day-to-day activities will include reference to the employee’s “ability to participate fully and effectively in working life on an equal basis with other workers”.

Direct discrimination related to pregnancy, maternity and breastfeeding

Currently the Equality Act provides that women can be afforded special treatment in connection with ‘pregnancy or childbirth’.  Under the Regulations, this definition will be extended to special treatment in connection with maternity (in addition to pregnancy or childbirth). 

The Regulations also clarify that less favourable treatment of a woman because she is breastfeeding can amount to direct sex discrimination.

The Equality Act currently prohibits pregnancy and maternity discrimination in the workplace during the ‘protected period’.  This period is the duration of the pregnancy and statutory maternity leave period.  The Regulations extend this protection to include unfavourable treatment after the end of the protected period as well as during it.  This would mean that unfavourable treatment after a woman returns to work from maternity leave will be discriminatory if the treatment is because of the pregnancy or a pregnancy-related illness during maternity leave. 

Discrimination and recruitment

Under the Regulations, in certain circumstances an employer will be liable for discriminatory comments made about recruitment, even if there is no active recruitment process taking place and no identifiable victim.

Indirect associative discrimination

Indirect discrimination can occur where an employer (A) applies a provision, criteria or practice (PCP) to all employees; the PCP puts or would put persons of an employee’s (B’s) protected characteristic at a particular disadvantage when compared to other persons; and the PCP puts or would put B at that disadvantage. The employer has a defence if it can show that the PCP is justified.

The Regulations provide that an employee will be able to claim indirect discrimination even if they do not share the protected characteristic of the group, but nevertheless suffer the disadvantage with that group.  This means that an employee without the protected characteristic could claim indirect discrimination if they are put at ‘substantively the same disadvantage’ as persons who have the relevant protected characteristic.

Comment

The Regulations aim to reproduce in law the effect of retained EU law as interpreted by court judgments.  They are subject to debate and approval in both Houses of Parliament.  They will come into force on 1 January 2024.

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30 November 2023

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