Words have Wings’: Equality Act change extends discrimination protection

It is well established that employers may face claims of discrimination from their own employees and workers and may also be liable if an applicant is discriminated against during a recruitment process.

However, a recent change to the Equality Act 2010, which has gone largely under the radar, expands statutory discrimination protection to individuals who do not work for an organisation, even where there is no active recruitment exercise in progress.

The details

Following Brexit, numerous EU directives ceased to apply in UK law 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”) were intended to reproduce, in UK law, a number of equality protections that had previously been provided under EU case law. The Regulations made several important changes to Equality Act 2010 which came into effect on 1 January 2024.

Amongst these was the insertion of a new Section 60A into the Equality Act 2010 which expressly provides that making a ‘discriminatory statement’ in connection with a ‘relevant decision’ (essentially a decision whether to offer employment or work in various contexts) is prohibited even if there is not actually an individual who has been or may have been affected by the discriminatory statement. A statement is discriminatory:

• If it is directed to the public, or a section of the public
• If it were made in connection with a relevant decision, the making of it would amount to direct discrimination.

Prior to this, the ‘recruitment’ provisions of the Equality Act 2010 were directed specifically at preventing discrimination in decisions made by an employer when deciding to whom to offer work in the context of a specific vacancy or recruitment exercise. There was no specific provision for discriminatory statements made (or even just planned) outside an active recruitment process, without an identifiable victim.

Discriminatory Statements

Section 60A is intended to replicate in UK law the decision of the European Court of Justice (“ECJ”) in the case of NH v Associazione Avvocatura per i diritti LGBTI. In that case, a senior lawyer made general comments on an Italian radio show that he would never hire a homosexual person to work at his law firm and would not wish to use the services of such a person. A claim of discrimination was brought against the firm, not by a prospective job applicant, but by an Italian association of lawyers which defends the rights of LGBTQI people.

The ECJ held that the senior lawyer’s statement was discriminatory, even though he was not talking about a particular vacancy or candidate, and there was no active recruitment campaign in progress. The remarks would discourage a certain group of potential applicants sharing a protected characteristic from applying to the firm, and therefore had the effect of hindering access to employment. In the words of Advocate General Sharpston, the Judge who gave the guiding decision in the case, “in any recruitment process the greatest ‘selection’ takes place between those who apply and those who do not. Nobody can reasonably be expected to apply for a position if they know in advance that because of [a protected characteristic] they stand no chance of being hired”. She also commented that ‘words have wings’ making the point that an ‘abstract’ comment can travel quickly and broadly and have a very real impact on the decisions potential applicants make.

Nexus to employment

Importantly, the ECJ also commented that, for an employer to be liable, there must be a clear link between the statements made and access to employment, and this requirement is replicated in s60A.

The subsections of s60A confirm that it is not necessary for an individual to be acting ‘in the course of their employment’ when any discriminatory statements are made. A discrimination claim may still succeed even if the individual was acting without the employer’s authority. However, there must be reasonable grounds for the public, or a section of the public, to believe that the person making the statement is ‘capable of exercising decisive influence on a relevant decision made by the employer’. When considering this issue, an employment tribunal must have regard to:

• The status of the person making the statement at the time it is made
• The nature and content of the statement
• The context in which the statement is made
• Any steps the employer has taken to dissociate itself from the statement made

Comment

As Section 60A was introduced so recently, there is not yet any UK case law applying the provisions. It will be interesting to see if many domestic cases arise and how UK courts and tribunals interpret the new law.

This amendment has genuinely broadened the scope of statutory discrimination law in the UK as protection now extends to situations where there may not be an identifiable individual victim, or any identifiable losses. It is important to note however that Section 60A does not create any new direct rights for job applicants (or potential applicants) to bring a claim in an employment tribunal.

In the NH case, the Italian courts ordered the law firm to publish an apology and devise an anti-discrimination plan. Similarly, under the amended Equality Act 2010 the Equality and Human Rights Commission (EHRC) has the power to investigate any purported discriminatory statements and take enforcement action. Options include recommending actions an employer should take or requiring an employer to produce a plan to show how continuance or recurrence of any discrimination will be prevented.

In light of this change, it is more important than ever that employers are vigilant about any public statements made by the organisation (for example on a website, publicity materials, or in support/sponsorship of an event). While it is relatively straightforward to steer clear of discrimination on the grounds, for example, of race or sexual orientation, discrimination against other characteristics such as disability or age might manifest more subtly. It’s advisable to have any public-facing content sense-checked by a diverse group of people wherever possible.

The greater risk however, may arise from individual members of staff making broad statements which may be traced back to their employer, and potentially discourage a particular group of potential applicants from applying for work. It is easy to imagine words shared casually on social media ‘growing wings’ and causing reputational damage or prompting EHRC involvement. Remember though that there must be some connection to recruitment/employment in a broad sense and some evidence of discriminatory intent.

Now may be a good time to remind staff about any rules or policies around social media use, and any content guidelines covering work-related platforms such as LinkedIn. It is especially important to remind senior stakeholders who may have more autonomy over their own social media feeds and speaking engagements, and whose views may well be seen as reflecting the ‘company line’, that a comment made ‘off the cuff’ may have significant repercussions.

Please do not hesitate to contact us if you require any advice or support on this tricky issue.

To read more about changes implemented by the Equality Act 2010 (Amendment) Regulations 2023 see our website here: Equality Act 2010 (Amendment) Regulations 2023 | Weightmans.