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The government has published draft regulations making various changes to the Equality Act 2010 to ensure that rights relating to protection from discrimination that are derived from EU law are preserved after 31 December 2023.
Whilst the intention is to ensure that current rights based on EU discrimination law will continue to apply on and after 1 January 2024, some of the principles have been little used in the UK to date. It remains to be seen whether this will change as a result of their express inclusion in the Equality Act 2010.
The regulations include the following:
There have been several Employment Tribunal decisions where the courts have applied the principle of "associative" indirect discrimination, but the principle was uncertain and had not been considered by the higher courts. Different approaches have been taken to the interpretation of the principle. In one case, the concept was interpreted as allowing claims by an employee who was put at a disadvantage because they had caring responsibilities for a relative with a disability – effectively extending discrimination protection to carers in some circumstances. This approach (which we consider was not the correct interpretation of CHEZ) has not been followed in the regulations. The claim will only arise where an employee with a protected characteristic could establish a traditional indirect discrimination claim, but protection will then be extended to others who have substantively the same disadvantage. The codification of this principle is likely to lead to further claims and case law, with a particular focus on what is meant by "substantively the same disadvantage".
For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.
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