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On 7th November 2023, the government introduced the draft Equality Act 2010 (Amendment) Regulations 2023 to Parliament.

The purpose of the Regulations is to carry across aspects of retained EU law into domestic law to ensure that the same level of protection is offered once the EU-based equality laws cease to apply at the end of the year.

The current position

From the end of 2023, the Retained EU Law (Revocation and Reform) Act 2023 will result in the following changes:

  • Directly effective EU rights derived from EU treaties and certain EU directives will be revoked.
  • The principle of supremacy of EU law will cease to apply (i.e. domestic legislation will be given priority over retained EU law).
  • UK courts and tribunals will no longer be obliged to interpret domestic law in accordance with underlying EU legislation.

The Act also gives the government the power to reproduce any retained EU law that will no longer have effect at the end of the year, to clarify legislation and resolve any ambiguity.

Therefore, the government has prepared the draft Regulations to reproduce in domestic law the interpretive effects of retained EU case law protecting against discrimination, which would otherwise be revoked at the end of 2023.

The Regulations are currently in draft form and are yet to undergo the Parliamentary process for statutory instruments.

The Regulations

The Regulations cover the following 5 main areas:

1. Direct discrimination related to maternity and breastfeeding

The current position under EU law is more extensive than domestic law. EU case law confirms that unfavourable treatment related to “pregnancy or maternity” amounts to direct sex discrimination. However, under the domestic law (Equality Act 2010), women may be given special treatment in connection with “pregnancy or childbirth”.

Therefore, the Regulations are drafted to insert “maternity” into the relevant provision of the Equality Act, so that the same interpretation continues to be given by courts and tribunals and ensure that the level of protection is not reduced.

Currently, women can bring a direct sex discrimination claim if they are subject to less favourable treatment at work because they are breastfeeding.

This type of claim would be based on EU case law, rather than the Equality Act 2010, because the Equality Act expressly states that the provision prohibiting less favourable treatment due to breastfeeding does not apply to work settings.

The Regulations remove the provision in the Equality Act which states that the breastfeeding protection does not apply to discrimination at work, so that women will still be able to bring this type of claim.

The interpretive effects of retained EU law also enable women to bring claims in relation to discriminatory treatment following maternity leave because of pregnancy or pregnancy-related illness during maternity leave, which the Equality Act does not protect against.

Therefore, the Regulations will amend the Equality Act to provide the same protection.   

The final maternity-related amendment is to provide equivalent protection against discrimination in relation to maternity leave under occupational or other contractual schemes as statutory maternity leave; whereby no comparator is required to bring a sex discrimination claim.

2. Indirect discrimination by association

To bring an indirect discrimination claim under the Equality Act, an individual must possess the protected characteristic against which the employer’s provision, criterion or practice is discriminatory.

Whereas, EU law permits an individual to bring an indirect discrimination claim if they suffer the same disadvantage, even if they themselves do not possess the protected characteristic.

The Regulations add a new provision into the Equality Act to enable claims of indirect discrimination to be brought by claimants without a protected characteristic in the same way as EU law provides.

3. Discriminatory statements outside an active recruitment process

Under retained EU case law, direct discrimination can arise when discriminatory statements are made by employers outside of an active recruitment process, even when no victim can be identified.

Whereas the Equality Act only prohibits discrimination in recruitment decisions against an individual due to their protected characteristic.

The Regulations introduce a provision to the Equality Act which prohibits discriminatory public statements by employers in connection with recruitment decisions.

Employers may also be liable for statements by third parties in this context if there are reasonable grounds for the public to believe that the third party is capable of exercising decisive influence on the employer’s recruitment decision.  

4. Single source test in relation to equal pay

Retained EU law enables equal pay claims to be brought using comparators with terms and conditions from the same single source. Whereas the Equality Act requires employees to use comparators who are employed by the same or an associated employer.

The Regulations amend the Equality Act so that the EU ‘single source’ test applies to domestic law. This will enable equal pay claims to be brought using comparators whose terms are attributable to a single body responsible for setting pay or whose terms are determined by the same collective agreement, even if they are not employed by the same or an associated employer.

5. Definition of disability

The definition of disability is wider in retained EU law than under the Equality Act, as the focus is on an individual’s ability to participate in their working life, whereas the Equality Act simply refers to the ‘ability to carry out normal day-to-day activities’.

The Regulations clarify the meaning of “normal day-to-day activities” within the definition of disability in the Equality Act to specifically include “ability to participate fully and effectively in working life”, so that individuals can still make use of the wider definition.

Effect of the Regulations

The Regulations are in keeping with the government’s affirmation that employment rights will not be weakened by the repeal of EU law.

The intention behind the Regulations is to maintain the current level of worker protection benefited from retained EU law.

The practical effect of the Regulations is currently uncertain, given that the Regulations are only in draft form and are yet to be approved by the Houses of Parliament.

However, clarification of the wording of the Equality Act 2010 in the above key areas is likely to be positive for both workers and employers.

Contact our employment law solicitors

If you are concerned about how the draft Equality Act 2010 (Amendment) Regulations 2023 will affect your business, how employment team can provide comprehensive advice. To contact them please complete the enquiry form below.

 

Key Contacts

Helen Watson

Helen Watson

Partner | Head of Employment Law

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Debbie Coyne

Debbie Coyne

Employment Law Senior Associate Solicitor

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Charlotte Smith

Charlotte Smith

Trainee Solicitor

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