The Government has recently published a draft statutory instrument to amend the Equality Act 2010. The Equality Act 2010 (Amendment) Regulations 2023 will have the effect of reproducing into UK law several equality protections derived from EU case law, which are currently set to fall away under the Retained EU Law (Revocation and Reform) Act 2023.
The amendments to the act will incorporate the following principles:
- Special treatment can be afforded to women in connection with maternity in the same way special treatment can be afforded in connection with pregnancy or childbirth.
- Less favourable treatment due to breastfeeding constitutes direct sex discrimination.
- Women are protected from unfavourable treatment after they return from maternity leave where that treatment is connected to their pregnancy or a pregnancy-related illness occurring before their return.
- Women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave under the Maternity and Parental Leave etc. Regulations 1999 (MAPLE Regulations)
- An individual who does not have a relevant protected characteristic can bring an indirect discrimination claim where they suffer a disadvantage arising from a discriminatory provision, criterion or practice (PCP) provided someone with a protected characteristic suffers the same disadvantage due to the PCP.
- Employers may be found liable for direct discrimination where discriminatory statements are made in respect of recruitment, even where there is no active recruitment process and no identifiable victim.
- Employees can use a comparator for equal play claims where their pay terms are set by a single body or where their terms are governed by the same collective agreement even if they work for different employers.
- The definition of disability must be understood as specifically covering a person’s ability to participate in working life on an equal basis with other workers.
If the instrument is approved, the above amendments are expected to come in to effect on 1 January 2024 to coincide with the removal of EU case law. Whilst there is no overall effect on the current positions in law, the implementation of this statutory instrument will bring comfort to many that their vital protections will remain.
The full draft statutory instrument can be found here: https://bit.ly/3QJ6jrb