The UK Government has introduced draft regulations to preserve in domestic law certain discrimination rights and principles derived from EU law which might otherwise fall away or be departed from following the Retained EU Law (Revocation and Reform) Act (REUL Act). In this article, we explore the changes being made to the Equality Act 2010 (EqA 2010) and what this means for employers.

Timing

The draft Equality Act 2010 (Amendment) Regulations 2023 (Equality Act Regulations) are due to come into force on January 1, 2024 and apply to Great Britain (England, Wales and Scotland) only.

What rights and protections are being “saved” by the Equality Act Regulations?

The Government has decided to “write into” the EqA 2010 certain principles from EU law, which we explore below.

1) Pregnancy and maternity - The Equality Act Regulations will amend the EqA 2010 to codify rights and protections relating to pregnancy, maternity and breastfeeding.

• In respect of direct discrimination, that the special treatment that is afforded to women in connection with pregnancy, childbirth also extends to maternity.
• For the purposes of direct sex discrimination at work, that less favorable treatment of a woman also includes less favorable treatment because she is breastfeeding.
• In respect of pregnancy and maternity discrimination, that women are also protected from unfavorable treatment after the “protected period” (i.e., generally from the start of pregnancy until the end of maternity leave) where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring during the protected period.
• That women are not only protected against pregnancy and maternity discrimination in the workplace in circumstances where they are entitled to statutory maternity leave but also where they have an entitlement to maternity leave that is equivalent. This can sometimes be the case where equivalent provisions to statutory leave are set out in contractual documents (for example, for LLP members or partnerships).

2) Indirect discrimination - The EqA 2010 will now explicitly set out that a claimant without a relevant protected characteristic (e.g., race, sex), but who suffers a disadvantage arising from a discriminatory provision, criterion or practice together with persons with the protected characteristic may bring a claim of indirect discrimination (despite not sharing in that relevant protected characteristic).

3) Discriminatory public statements regarding recruitment - The Equality Act Regulations will codify into the EqA 2010 that employers (and equivalents for other work categories) may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment to the public or a section of the public, even when there is not an active recruitment process underway and there is no identifiable victim. Also, even where a discriminatory statement is made by a third party, the employer may still be considered as having made the statement in some circumstances.

4) Equal pay and the single source test - A concern many commentators raised about the REUL Act in respect of retained EU employment laws was the impact it would have on the ability for claimants to rely on the single source test in respect of equal pay claims. The Equality Act Regulations enshrine the single source test into the EqA 2010, so that an employee is able to draw a comparison for the purposes of equal pay claims with another employee where their terms are attributable to a single body responsible for setting or continuing the pay inequality and which can restore equal treatment, or where their terms are governed by the same collective agreement.

5) Definition of disability is being clarified - The Equality Act Regulations are amending Schedule 1 to the EqA 2010 to clarify that, in relation to workplace discrimination, the ability of a person’s ability to carry out “normal day-to-day activities” must be understood as specifically covering a person’s ability to participate in working life on an equal basis with other workers. Note that in the Equality Act Regulations, the term “working life” is referred to instead of “professional life” which was the term developed under retained EU law.

What does this mean in practice?

The amendments proposed to the EqA 2010 are, in principle, welcome clarification of which equality rights are being saved in the wake of the REUL Act. And the Government at least considers that this new legislation will ensure that the areas of law covered will continue to have “the same affect after the end of 2023 as it did before.” The Government’s intention is clearly not to lessen workers’ rights in this area, which is likely due to the UK’s level playing field obligations under the Trade and Cooperation Agreement with the EU and an impending election.

However, it is unclear whether legislating will have unintended consequences – after all it is difficult to write into legislation principles from caselaw and the EU law framework surrounding them that have developed over many years. So, we will need to watch and see how these are interpreted by the tribunals and courts going forward.

Employers will now need to ensure that they do not fall foul of the protections to be enshrined in domestic law and will need to check any equalities policies are up to date and may wish to carry out additional training on these aspects.