Equality Act 2010 amended to preserve discrimination protections derived from EU law

From the end of 2023 all directly effective EU laws are removed from the UK statute book. Domestic legislation will be granted priority over EU law, so the principle of the supremacy of EU law will no longer apply. UK courts and tribunals will also no longer be obligated to interpret domestic legislation in line with EU law.

The Government has introduced regulations to amend the Equality Act 2010 and so codify in domestic law certain provisions protecting individuals from discrimination derived from EU law. As without the regulations these provisions would have ‘fallen away’.

The intention is for the law in these areas to remain the same. But there are some subtle changes that employers need to be aware of.

Revised definition of disability

A revised definition of disability will take into account a person’s ability to participate in working life when considering the impact of the person’s condition on their ability to carry out normal day-to-day activities.

The UK Equality Act currently refers to a person’s ability to carry out “normal day-to-day activities”. The new definition is broader, including work specific activities, but we do not expect much will change in practice. UK tribunals had tended to take this approach by finding that work-related activities constitute normal day-to-day activities in many cases.

Indirect discrimination – a wider pool of claimants

Under the UK Equality Act the claimant in an indirect discrimination claim must share the same protected characteristic as the group placed at a disadvantage. For example. the claimant in an indirect disability discrimination claim must be disabled.

But EU case law had gone further than this and held that such a claim could be brought by someone who did not share the protected characteristic. They would still need to show that they suffered the same disadvantage that those with the protected characteristic suffer from.

Under the new regulations the UK law is amended to reflect the EU case law position, so widening the pool of potential indirect discrimination claimants. For example, this could open the door to indirect sex discrimination claims by men with childcare responsibilities to, say, challenge a requirement to work full time.

Previously only women could make such a claim, on the basis that childcare responsibilities disproportionately fall on women and therefore they were disadvantaged as a group by a requirement to work full time compared to men. The new laws mean that a man could make such a claim, providing he can show that his childcare responsibilities put him at the same disadvantage.

Maternity related changes

The new regulations will make some changes to maternity related rights. We have summarised these below:

• Less favourable treatment on the ground of breastfeeding will now constitute direct discrimination on the ground of sex
• Women are protected from unfavourable treatment following their return from maternity leave, where this treatment arises in connection with their pregnancy or related illness. Currently the protected period ends on return from maternity leave
• Women who do not qualify for statutory maternity leave but have the benefit of an employer’s occupational scheme will be protected against pregnancy and maternity discrimination in the workplace. This could cover LLP members and partners in unincorporated partnerships.

These maternity related changes should have limited impact on employers. They reflect current practice or could have been covered by existing law. The difference being that those areas are now expressly covered.

The regulations reflect the Government’s commitment to maintaining employment rights following the removal of much EU law. The changes may broaden certain employee rights, but they do provide clarity for all involved in specific areas that were previously the subject of some academic debate.

If you have any questions or would like to discuss anything in this article please speak to one of the employment team on info@ts-p.co.uk.