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New equality laws for a new year

Posted: 24/01/2024

On 1 January 2024, amendments to the Equality Act 2010 came into force. These amendments preserve, and in some cases, extend, a number of employment rights which would otherwise have ceased to be effective at the end of 2023 by virtue of the Retained EU Law (Revocation and Reform) Act 2023 (REUL). The amendments are summarised as follows: 

Removal of requirement for same employer with equal pay claims

Under the Equality Act, in order to bring an equal pay claim, employees needed to demonstrate that they were paid less than a colleague employed by the same, or an associated employer. This is in contrast to the favoured EU approach which only requires that terms and conditions are derived from a ‘single source’. This EU approach has now been built into the Equality Act, with the effect that an employee may potentially compare pay with employees from different organisations.  

In practical terms, however, this is unlikely to lead to any real change as the UK courts and tribunals have been using the ‘single source’ test for some time, due to the requirement to interpret UK law in line with rights provided under EU treaties.       

Expansion of definition of disability

The Equality Act defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The concept of normal day-to-day activities has now been expanded to include a person’s ability to ‘participate fully and effectively in working life on an equal basis to other workers’, which essentially widens the definition to cover infrequent work activities, as well as activities common in certain types of employment.  
For example, work-related activities such as taking career-related examinations and assessments, may now fall under the definition of normal day-to-day activities, and activities such as lifting and moving heavy goods, which is uncommon in most jobs but relevant to some, may also be covered. Again, the practical impact of this change is likely to be limited as the wider definition has already been adopted in the UK in some cases, and this simply restates the position under UK law.

Goodbye to the need to share a protected characteristic when claiming indirect discrimination

In the case of indirect discrimination claims, a claimant was previously required to share the same protected characteristic as the disadvantaged group. This has now changed to fall in line with a European Court of Justice decision which held that such a claim may be brought by a person who does not share the same protected characteristic.  

In this case, Roma people had been disadvantaged by electricity meters in their area being fitted at a height that was more difficult for them to access, which had been done to prevent such meters being interfered with. A resident of that area, who was not of Roma ethnic origin, succeeded with an argument that she had been indirectly discriminated against as it was a disadvantage for her as well, despite her not having the protected characteristic.  

This change to the Equality Act opens up the possibility for new claims to be raised which could not have succeeded before. For example, only women with childcare responsibilities who were not permitted to work part-time could have succeeded with indirect discrimination claims, whereas now this has changed, and men who are also refused part-time work can potentially make such a claim, as they are suffering the same disadvantage as the disadvantaged group (ie women with childcare responsibilities), without actually falling within it.

Pregnancy, maternity and breastfeeding

The Equality Act now:

  • permits special treatment connected with pregnancy or childbirth, confirming that a man cannot claim direct discrimination due to such preferential treatment;
  • provides that it is direct sex discrimination to treat a woman less favourably because she is breastfeeding at work;
  • protects those returning from maternity leave from unfavourable treatment after the protected period ie the end of maternity leave; and
  • extends protection to mothers who are covered by occupational schemes but who do not have the same rights as those entitled to statutory maternity leave.

Discriminatory statements

In a further change, the Equality Act now provides that a discriminatory statement made in connection with a recruitment decision can constitute direct discrimination, despite the fact that there may be no active recruitment exercise or identifiable victim. Under this new provision, claimants do not need to be personally affected by such statements and it will be interesting to see how this protection develops in practice. 

Although such legislation, which brings UK law into line with the EU position, might be frowned upon by those who favour a ‘hard Brexit’, it may bring a sigh of relief to those who were concerned about diminished employment rights, and the uncertainty that REUL may bring. It will be interesting to see what other changes are around the corner, particularly with a potential change of government later this year.

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