The purpose of the new Regulations is to "reproduce in domestic law certain interpretive effects of retained EU law which, under the Retained EU Law (Revocation and Reform) Act 2023, will cease to apply to the UK statute book after the end of 2023."
The Equality Act has now been amended to protect certain rights against discrimination which derive from EU Law, so they are not lost by the Retained EU Law (Revocation and Reform) Act 2023.
The Regulations amend the Equality Act 2010 to achieve this purpose. The amendments are specifically in relation to the following:
- Direct discrimination related to pregnancy, maternity and breastfeeding;
- Indirect discrimination where a person without a relevant protected characteristic suffers substantively the same disadvantage as those with that protected characteristic;
- Direct discrimination in the context of access to employment and occupation as regards public statements outside a recruitment process;
- The right to equal pay where employees' terms are attributable to a single source (Article 157 of the Treaty on the Functioning of the European Union);
- The definition of disability in relation to employment and occupation.
Direct discrimination related to pregnancy, maternity and breastfeeding
Section 13 (6) (b) of the Equality Act 2010 provided that special treatment could be afforded to women in connection with "pregnancy or childbirth". However, in EU case law, the scope for such treatment is wider and includes "pregnancy or maternity", which gives a wider scope for this treatment following childbirth. The concern post 2023 was that the scope of the preferential treatment in relation to "maternity" and in particular occupational maternity schemes, may be narrower than present. Therefore "maternity" has now been added to section 13 (6) (b)
Just by way of reminder, section 13 (6) (b) currently states:
- A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treats others.
- If the protected characteristic is sex -
(b) in a case where B is a man, no account is to be taken of special treatment afforded to a women in connection with pregnancy or childbirth.
Section 13 of the Equality Act defines direct discrimination and section 13 (6) (1) provides that where the protected characteristic is sex, less favourable includes less favourable treatment because a women is breastfeeding. However this provision is expressly excluded by section 13 (7) in relation to Part 5 (work).
Due to European case law however, the European Court of Justice determined that direct discrimination on the grounds of sex includes less favourable treatment because of breastfeeding. The new Regulations specify that less favourable treatment on the grounds of breastfeeding constitutes direct discrimination on the ground of sex by removing section 13 (7) of the Equality Act 2010.
Unfavourable treatment after the protected period
The Equality Act has been amended to reflect the position in the case of Brown v Rentokil, that women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return.
Maternity leave under occupational schemes
The Equality Act has been amended to continue to ensure that women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave. This decision reflects the position determined by the Court of Appeal in the case of Commissioner of the City of London Police v Geldart (2021), applying the principle established in the ECJ case of Webb v EMO Air Cargo (UK) Ltd.
Indirect discrimination: same disadvantage
The right to claim indirect discrimination on the basis of an association was recognised in "CHEZ Razpredelenie Bulgaria" AD v Komisia za zashtita ot diskriminatsia. It held that that the protection from indirect discrimination must extend to a person who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from a provision, criterion or practice but who suffers with persons who do have the relevant protected characteristic. The Regulations has preserved the effect of this decision by inserting a new S 19A of the Equality Act 2010. This will provide that indirect discrimination can be established if the Claimant is put (or would be put) at "substantively the same disadvantage as persons who do share the relevant protected characteristic."
Access to Employment and Occupation
Employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway. The earlier provisions in the Equality Act were specifically directed at preventing discrimination in the context of decisions that an employer makes when deciding who to offer employment to. The European Court of Justice however, ruled in the case of NH v Associazione Avvocatura per i diritti LGBT that employers may be liable for direct discrimination if a discriminatory statement is made about not wanting to recruit people that share certain protected characteristics, even where there is no active recruitment in place and there is no identifiable victim. The Equality Act has been amended to preserve this protection.
The Equality Act requires an actual comparator doing equal work or work of equal value before a sex equality clause or rule can operate. This contrasts with the position under Article 157 of the Treaty on the Functioning of the European Union which allows comparisons to be made between employees in the same establishment or service. Comparisons are not confined to employees working for the same employer or associated employer. The key question is whether there is a single body responsible for the alleged pay inequality and which can restore the equal treatment. The "single source" comparator test has therefore been preserved by inserting a new subsection 4A into S79 of the Equality Act, which defines who is a valid comparator for the purposes of an equal pay claim. As amended S79 provides that an equal pay comparison can be made where there is a single body that is responsible for setting or continuing the terms on which the Claimant and comparator are employed, and which is in a position to ensure equal treatment between them.
Definition of disability
Schedule 1 of the Equality Act has been amended to take account of the European Court of Justice's decision in HK Danmark v Dansk almennyttigt Boligselskab and another case 2013 ICR 851 The Court there ruled that the concept of disability "must be understood as inclusive of people experiencing limitations which 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." The definition of disability in S 6 Equality Act "A person (P) has a disability if (a) P has a physical or mental impairment and (b) the impairment has a substantial and long term adverse effect on P's ability to carry our normal day to day activities" did not give effect to this interpretation and could be interpreted as referring only to general or common activities. Accordingly, a new paragraph 5A has been inserted into Schedule 1, to provide that the reference in S6 to a person's ability to carry out normal day to day activities is to be taken as including a reference to the person's ability to participate fully and effectively in working life on an equal basis with other workers.