The Government has published draft legislation to amend the Equality Act 2010 which took effect from 1 January, 2024.
The Equality Act 2010 (Amendment) Regulations 2023 (the Regulations) however do not bring with them large swathes of additional protection but are rather set to codify certain discrimination protections we previously benefited from by being held to a standard imposed by EU laws. These protections would have otherwise disappeared by the end of the year as a result of Brexit legislation. What should employees or those managing employees be aware of then? The five main changes we consider are:
Expanded definition of disability
Under the Equality Act 2010, a person may be considered legally disabled where they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day to day activities. An amendment to guidance on the definition of disability will require employers to take into consideration a person’s ability to participate fully in working life on an equal basis with other workers as a relevant factor when looking at “day-to-day activities”.
Protection for breastfeeding mothers
The Equality Act 2010 as it currently stands protects women from direct sex discrimination if they are treated “less favourably” because they are breastfeeding. However, it is expressly stated that this right does not apply to discrimination at work. That exclusion is to be removed, which may require employers to undertake a personal risk assessment for a returning breastfeeding mother, or to provide suitable facilities for her to store and express breast milk.
Indirect associative discrimination
The right to claim indirect discrimination by association will be extended to cover those who do not hold the relevant protected characteristic but suffer the same disadvantage at the hands of the employer’s “Provision, Criteria or Practice” as those who do. This could for example provide greater scope for a father with principal childcare responsibilities to use similar indirect sex discrimination arguments advanced by women looking for more family-friendly working arrangements.
Equal Pay Claims
To succeed in an equal pay claim, the underpaid gender must be able to point to an actual comparator employed by the same employer or an associated employer. The Regulations will however confirm a ‘single source’ test for establishing an equal pay comparator. This will mean that a comparator can potentially work for a different business so long as the body responsible for setting working terms is the same.
Discriminatory Statements
The direct discrimination protection will be extended to cover discriminatory statements made about not wanting to recruit people with certain protected characteristics, even when there is no active recruitment and/or no identifiable victim. Employers should be mindful of this when engaging with recruitment professionals, or handling recruitment directly.
Whilst the Regulations are in draft form currently, employers should ensure that their policies are updated for 2024 and extra training is provided on equality matters where there are gaps in order to avoid falling foul of these amendments.