When the Equality Act was introduced in 2010 it implemented various pieces of previous EU legislation. After Brexit (from 1.1.21), EU legislation was copied into UK domestic law. The current UK Government then announced a law called the Retained EU Law (Revocation and Reform) Act (REUL), to take affect on 31st December 2023; which would effectively remove all copied over EU law in the UK, unless the Government chose to retain EU rights by keeping some of the EU-derived laws, or make changes to them.
This REUL law would have effectively removed some important Equality rights that have developed from EU case law over time, so the Government have now put down draft regulations before Parliament, called the Draft Equality Act 2010 (Amendments) Regulations 2023. Once approved this law will make amendments to the Equality Act from 1st January 2024, which will reproduce in England, Wales and Scotland some EU equality rights that would otherwise have been lost.
The changes to the Equality Act that will come into effect on 1st January 2024 are:
- Definition of Disability – Under the Equality Act 2010, a person has a disability if they have an impairment which has a substantial and long-term adverse effect on their ability to carry out ‘normal day-to-day activities‘. Following a 2013 ECJ judgement (HK Danmark v Dansk), the new Equality Act will expand the definition of disability to include ‘the person’s ability to participate fully and effectively in working life on an equal basis with other workers‘.
- Associative Indirect Discrimination – Associative Direct Discrimination is where a worker is treated less favourably because they have an ‘association’ with someone with a protected characteristics (as laid down in the Equality Act). Indirect Discrimination happens where an Employers applies a practice that inadvertently puts someone with a protected characteristic at a disadvantage in comparison to other workers. The ECJ (Court of Justice of the European Union) has previously held (in Chez) that the concept of associative discrimination could in principle be extended to indirect discrimination – so, where someone without the same characteristic as those who are disadvantaged by their employer, may also suffer the same disadvantage because they are associated with that group who were disadvantaged.
- Equal Pay Claims, Single Source Test – Under an existing EU treaty right, an equal pay claim can be bought by staff in Great Britian by comparing themselves with other workers whose terms are set by a single body (who is responsible for the pay inequality and could restore equal treatment), regardless if they have the same Employer. Under current British law the ‘comparator’ has to be employed by the same/associated employer. The EU treaty right will now be enshrined in English, Welsh and Scots law.
- Direct Discrimination related to pregnancy, maternity and breastfeeding – the new law will allow direct sex discrimination claims if a woman has been treated less favourably because they are breast-feeding. It will also state that any special treatment of a women in connection to maternity is not direct sex discrimination. Also, it will be pregnancy and maternity discrimination to treat a woman unfavourably in connection with their pregnancy or pregnancy-related illness, during pregnancy and maternity leave and (new) after the woman returns from maternity leave.
What does this actually mean?
It means that workers can rely on British employment law and do not need to persuade Tribunals to use their powers to intepret the Equality Act 2010 so that it takes into account the EU equality rights that have been gained before Brexit.
The Government has said it is not going to issue any new guidance, as the intention is for there to be no change to the overall effect of existing (British/EU retained) laws. There may be some future Tribunal cases to test the drafting of the law…..