The Department for Business and Trade recently laid draft regulations before parliament which, subject to parliamentary approval, will make key amendments to the Equality Act 2010 to retain various EU-derived rights and principles in our domestic law which would otherwise be lost.
Background: EU-derived equality law and Brexit
The Equality Act 2010, and prior to that its predecessor legislation, implemented various pieces of EU legislation. As a result, EU case law interpreting the underlying EU-legislation can aid our understanding of that law and analyse whether our domestic law correctly implemented it. Following Brexit, with effect from 1 January 2021, direct EU legislation was copied over into UK domestic law and pre-existing judgments of the ECJ were given similar status as appellate decisions of UK Court of Appeal.
Background: Retained EU Law (Revocation and Reform) Act 2023
With effect from midnight on 31st December 2023, sunsetting provisions in the Retained EU Law (Revocation and Reform) Act 2023 (REUL) make major changes to the content and operation of retained EU law, and various changes are made to the rules of priority and interpretation.
To prevent EU-retained rights being inadvertently lost, the REUL gives the government various powers, including to reproduce those EU-derived rights in our domestic law, and to make changes to resolve ambiguity or facilitate improvement in the clarity or accessibility of the law.
Equality Act 2010 (Amendment) Regulations 2023
Using its powers under the REUL, the Department for Business and Trade recently laid draft regulations before parliament – Draft Equality Act 2010 (Amendment) Regulations 2023 (EAAR).
The EAAR will, subject to parliamentary approval, make key amendments to the Equality Act 2010 from 1 January 2024. They reproduce in our domestic law certain interpretive effects of retained EU equality law that would otherwise be lost due to the REUL. In summary, the EAAR make the following amendments to the Equality Act 2010:
Definition of disability (new Schedule 1 (5A) Equality Act 2010)
Under the Equality Act 2010, a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out ‘normal day-to-day activities’. An activity will usually be a ‘normal day-to-day’ activity if it is something people do on a regular basis – such as shopping, reading and writing, having a conversation/using the telephone, watching TV, getting washed and dressed, preparing and eating food, carrying out household tasks, walking, using transport to travel and/or taking part in social activities.
Normal day-to-day activities will also generally include common work activities which significant number of the population are required to perform for work, but will exclude unique and unusual activities which are very specific to a particular job.
However, the ECJ has previously held that the concept of disability must include ‘a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’ (HK Danmark, -v- Dansk almennyttigt Boligselskab [2013] EUECJ C-335/11).
To preserve this EU right, the EAAR insert a new paragraph (5A) into Schedule 1 of the Equality Act 2010. This provides that, in the definition of disability, the reference in the definition of disability to ‘a person’s ability to carry out normal day-to-day activities […includes…] the person’s ability to participate fully and effectively in working life on an equal basis with other workers’ (our emphasis added).
In practical terms, from 1 January 2024, provided a worker can show that their physical or mental impairment has a substantial and long-term adverse effect on their ability to fully and effectively participate in working life equally with their colleagues, it will be easier for them to establish that they are disabled.
Indirect associative discrimination (new s19A Equality Act 2010)
Associative direct discrimination occurs when a worker is treated less favourably ‘because of’ their association with someone with a protected characteristic (save for marriage or civil partnership) (s13 Equality Act 21010). For example, if you dismiss an employee because their child is disabled.
Indirect discrimination occurs when an employer applies a provision, criterion or working practice which, although on the face of it is neutral and applicable equally to all workers, in fact inadvertently puts one group of protected workers at a particular disadvantage in comparison to other workers (s19 Equality Act 2010). For example, a requirement that managers must work full-time may disadvantage women as a group because they are more likely to have childcare responsibilities.
To bring an indirect discrimination claim under s19, the claimant must have the same protected characteristic as the wider disadvantaged group. Using the same example, a male manager who finds working full-time difficult due to childcare responsibilities could not bring an indirect discrimination claim under s19 because he does not share the same sex as the wider disadvantaged group. However, the requirement for the claimant to have the protected characteristic is not a requirement set out in the underlying EU Directives.
However, the ECJ has previously held that the concept of associative discrimination could in principle be extended to an indirect discrimination claim under EU discrimination principles (CHEZ Razpredelenie Bulgaria (Judgment) [2015] EUECJ C-83/14). CHEZ concerned the decision of a Bulgarian electricity supplier to fix electricity meters six metres up electricity poles in a district predominantly populated by persons of Roma ethnic origin, on order to avoid them being tampered with. This policy prompted a discrimination complaint from a shop owner in the district, N, who is not herself of Roma ethnic origin but lived alongside the Roma people and suffered the same disadvantage. The ECJ held that, the fact the person does not themselves have the protected characteristic, does not prevent them from claiming indirect discrimination; an individual may suffer disadvantage alongside a disadvantaged group without sharing the protected characteristic of the group. CHEZ therefore cast doubt on whether s19 had correctly implemented EU equality law.
To preserve this EU right, the EAAR insert a new s19A into the Equality Act 2010, which will enable a person without a protected characteristic to bring an indirect discrimination claim if ‘the provision, criterion or practice puts, or would put, [them] at substantively the same disadvantage as persons who do share the relevant protected characteristic’ (our emphasis added).
Perhaps the most well-reported example of the CHEZ principle being applied in practice in an employment context is the recent decision of an employment tribunal to award £345K in compensation to an employee for indirect associative discrimination based on her association with her disabled mother, after the employer required its senior managers to switch from hybrid working to being office based (Follows -v- Nationwide Building Society [2023] UKET 2201937/2018; see our detailed report of the decision here).
Equal pay claims: single source test (s79 amended)
The EAAR amends s79 of the Equality Act 2010 to reproduce the effects the single source test for comparators in equal pay claims. A worker is a comparator where the two sets of terms are attributable to a single body responsible for the alleged pay inequality and capable of restoring equal treatment, or where the terms are governed by the same collective agreement.
Direct discrimination related to pregnancy, maternity and breastfeeding (various)
The EAAR make various changes to the Equality Act 2010 with regards to pregnancy, maternity and breastfeeding, in particular:
- s13(6)(b) is amended so that no account is taken of special treatment in connection with maternity;
- s13(7), which currently excludes direct sex discrimination claims relating to breastfeeding under the work provisions, is repealed;
- s18 is amended so that protection in pregnancy and maternity discrimination claims is extended to cover unfavourable treatment after the protected period, where the treatment is because of the pregnancy or pregnancy-related illness during the protected period;
- Where the right to maternity leave arises from an occupational scheme, the protected period is extended entitling claimants to bring a pregnancy and maternity discrimination claim without the need for a comparator.
Discriminatory statements about recruitment (new s60A)
The EAAR introduces a new section 60A, which provides that a general discriminatory statement made in connection with a relevant recruitment decision may constitute direct discrimination, even if there is no active recruitment exercise and no identifiable victim.
Practical impact of the Equality Act 2010 amendments
The EAAR codify a number of important EU equality rights into our domestic law from 1 January 2024. In practical terms, this will mean that workers can rely directly on our domestic law and will no longer need to persuade tribunals to use their powers to interpret the Equality Act 2010 in a way which gives effect to those EU equality rights. It is not yet clear whether the Equality and Human Rights Commission will update its guidance and Codes of Practice in relation to the changes outlined above.
For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
