Amendments to the Equality Act 2010 — Retaining European protections for UK employees

Following Brexit, numerous EU directives will no longer apply to UK employees after 31 December 2023, unless codified directly into domestic law in line with the Retained EU Law (Revocation and Reform) Act.

The Equality Act 2010 (Amendment) Regulations 2023 (the Regulations) have been published and are intended to reproduce in UK law a number of equality protections that had previously been protected under EU case law.  We look at a few of the key changes:

• discrimination in access to employment 
• discrimination related to breastfeeding
• indirect discrimination by association 
• the definition of disability, and
• equal pay

Indirect discrimination by association

Under the Equality Act 2010 (the Act), discrimination by association occurs where a worker is treated less favourably because of their association with someone who has a protected characteristic.

Indirect discrimination occurs where an employer applies a provision, criterion or practice which has a disadvantage to a particular group of similar protected characteristics.

The European Court of Justice (ECJ) in 2015 in the case of CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia (CHEZ) held that the concept of discrimination by association could apply to indirect discrimination. This case concerned an electricity provider, which installed electricity meters significantly higher than the normal two metres above ground level in areas with a majority population of Roma travellers. The behaviour was found to be discriminatory on racial grounds under an EU Race Equality Directive. However, the claim was brought by a non-Roma living in the area introducing the novel concept of indirect associative discrimination. Similar cases have since built on CHEZ and national laws are required to give effect to the EU directive, which has led to the introduction of indirect discrimination by association falling within the jurisdiction of UK courts and employment tribunals through European case law.

The Regulations will introduce a provision where a person without a protected characteristic can bring a claim for indirect discrimination.

Disability guidance for employers

The definition of someone who has a disability under the Act is an individual who has a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities. The Regulations seek to amend Schedule 1 of the Act to provide that in defining disability by reference to a person’s ability to carry out normal day to day activities, this must be read as including a person’s ability to participate fully and effectively in working life on an equal basis with other workers. The ECJ in the case of HK Danmark Almennyttigt Boligselskab [2023] confirmed that disability must be understood as inclusive of people experiencing limitations related to physical, mental or psychological impairments which hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. This is considered broader than the current definition of disability discrimination. The Regulations seek to ensure this guidance is preserved after 31 December 2023.

Single source test for equal pay

At present, the equal pay provisions in the Act provides that an employee is entitled to contractual terms, including those related to pay, that are as favourable as those of a comparator of the opposite sex in the same employment if they are employed on equal work. The Act requires an actual comparator rather than a hypothetical comparator. The Regulations will seek to introduce a “single source” test in equal pay claims which will allow employees to use comparators working from a different employer. The key question is whether the employees' terms are attributable to a single source; that is, whether there is a single body responsible for the alleged pay inequality and which can restore equal treatment.

Discriminatory statements and recruitment practices

The Regulations extend protection to cover discriminatory statements about recruitment of people with certain protected characteristics, even when there is no active recruitment process ongoing. This is unusual as there may not be an identifiable victim or loss. Alternatively, such statements would already be covered under the definition of harassment. It would seem that this provision simply solidifies what constitutes unlawful conduct within a workplace and broadens the protections of the Act. Preventing such remarks that constitute discrimination or harassment supports a more diverse and inclusive workplace culture, which is the original purpose of the Act.

Discrimination relating to breastfeeding

The Regulations also confirm that breastfeeding falls under the protected characteristic of sex, codifying the principle in the ECJ case of Otero Ramos v Servicio Galego de Saude and another [2018] ICR 965. Therefore an employee can bring a claim for direct discrimination because of breastfeeding.

The Regulations ensure continued protection of workers in the UK following Brexit as part of the ‘Retained EU Law’ reform process. Practically, the Regulations seek to maintain the current legal position, rather than create new protection. Nevertheless it is important to ensure that employers are reminded of these provisions and consider amendment to policies and training requirements to workers.

For guidance on ensuring compliance with the expanded scope of the Equality Act, speak to our expert Employment team.