The Government has released a draft version of legislation which seeks to modify the Equality Act 2010 and is due to be in force from 1 January 2024. The Equality Act 2010 (Amendment) Regulations 2023 solidify specific discrimination protections derived from EU law which would have otherwise ceased to apply at the end of the year (due to Brexit).
Below is an overview of the proposed amendments, however once the final version is published, we shall provide more detail as to what this means practically for employers:
Indirect discrimination by association – includes someone without the protected characteristic
The right to claim this will be extended to individuals who do not have the relevant protected characteristic but who also suffer similar disadvantages to those who do because of the employer’s policies etc (provision, criterion or practice (PCP).
In more legal terms, this will provide that indirect discrimination can be established if the claimant is put (or would be put) at ‘substantively the same disadvantage’ as persons who share the relevant protected characteristic.
Definition of disability extended
The guidance on the definition of a disability will be made more explicit to clarify that the reference to a person’s ability to carry out normal day-to-day activities includes a reference to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.
‘Single Source’ test for equal pay comparators
A ‘single source’ test to establish an equal pay comparator is being adopted into UK law. This means that an equal pay comparator can potentially work for a different business, as long as the entity responsible for the terms of employment and ensuring equal treatment, is the same.
Direct discrimination
Protection against direct discrimination is being extended to cover statements that express a refusal to recruit individuals with specific protected characteristics, even in the absence of an active recruitment process and without an identifiable victim.
Breastfeeding and maternity
Less favourable treatment on the ground of breastfeeding will be regarded as direct discrimination and will fall under the protected characteristic of sex. Employees will also be protected after they return from maternity leave where they experience unfavourable treatment in connection with their pregnancy (including a pregnancy related illness) occurring before their return.
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