Key takeaways

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:

• 'Associative' indirect discrimination: currently, under the indirect discrimination provisions in the Equality Act, the claimant needs to share the same protected characteristic as the wider disadvantaged group. For example, a requirement that everyone must work full time is likely to disproportionately affect female workers as they are more likely to have caring duties at home and therefore be unable to comply with this policy. A female employee would be able to bring an indirect discrimination claim under the Equality Act. However, a male employee with similar caring responsibilities would not as he does not have the same protected characteristic (female sex) as the disadvantaged group. In CHEZ Razpredelenie Bulgaria, the ECJ held that the concept of associative discrimination could, in principle, be extended to an indirect discrimination claim under EU principles. The Equality Act is being amended to clarify that a claimant will be indirectly discriminated against if they are put at "substantively the same disadvantage" by the provision, criterion or practice as the wider disadvantaged group. 

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".

• Single source test for comparators in equal pay claims: currently, the Equality Act provides that a worker claiming equal pay can only compare themselves to someone who is employed by the same employer or an associated employer (either at the same establishment or a different establishment where common terms apply). Article 157 of the Treaty on the Functioning of the EU allows a worker to compare themselves more widely - the test being whether the workers' terms are attributable to a single source who is responsible for the alleged pay inequality and capable of rectifying the issue. The Equality Act is being amended to expressly add the single source test, which will also apply where the workers' terms are governed by the same collective agreement. The ability to rely on the provisions of article 157 in proceedings in the UK is well established and therefore this amendment will maintain the current position.
• Definition of disability: currently, the definition of disability under the Equality Act is where the individual's physical or mental impairment has a substantial and long-term adverse effect on their ability to carry out "normal day-to-day activities". ECJ case law has previously ruled that the concept of disability must include individuals with impairments that "hinder the full and effective participation…in professional life." The Equality Act is being amended to clarify that "normal day-to-day activities" must be read as including a person's ability to participate fully and effectively in working life on an equal basis with other workers.  In practice, this is how the existing law has been interpreted by the EAT and so it is intended that the change will preserve the current position, rather than leading to a substantive change.
• Pregnancy/maternity related discrimination: The following changes are being made:
  • Section 13(6)(b) of the Equality Act will be amended so that no account is to be taken of special treatment in connection with maternity in a direct sex discrimination case. Currently, the provision is limited to special treatment in connection with pregnancy or childbirth.
  • Section 13(7) of the Equality Act will be repealed so that direct discrimination on the grounds of breastfeeding in work cases will amount to direct sex discrimination.  At present, it is expressly not direct sex discrimination in work cases if the less favourable treatment is because she is breastfeeding.
  • Section 18 of the Equality Act deals with maternity and pregnancy discrimination at work and defines the period during which a woman is protected from less favourable treatment as being from the start of pregnancy until the end of her maternity leave period. At present, she is protected from less favourable treatment only because of decisions made during that period (whether that decision is implemented during or afterwards). Section 18 will be amended so that protection against discrimination on grounds of pregnancy and maternity covers unfavourable treatment decided upon after the protected period, where the treatment is because of pregnancy or pregnancy-related illness during the protected period. The protected period is also extended to cover women whose right to maternity leave arises under an occupational scheme rather than the statutory regime.
• Liability for discriminatory public statements in relation to recruitment: There is currently no liability for public statements which signal the intention to directly discriminate against people with certain protected characteristics in recruitment if those statements are made outside an active recruitment exercise and where there is no identifiable victim. However, the ECJ has previously held that this could amount to direct discrimination. The Equality Act is being amended to reflect the ECJ jurisprudence so that a statement made to the public will attract liability if it would have amounted to direct discrimination had it been made in connection with a recruitment decision. An employer will also be vicariously liable for statements made by a third party if there are reasonable grounds for the public to believe that the third party can exercise decisive influence on the employer's recruitment decision – although if the employer takes steps to disassociate themselves from the discrimination this will be taken into account. A claimant does not need to be affected by the discriminatory statement nor does the employer need to be actively recruiting. There is however no direct right for a job applicant to bring a claim for compensation for a breach; this would be a matter for the Employment and Human Rights Commission under its enforcement powers.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.