The Equality Act 2010 (Amendment) Regulations 2023 aim to consolidate key rights and principles against discrimination which are derived from EU law. As a result of Brexit, the protections would have otherwise ceased to exist. The effect of retaining certain instruments is that they will continue to apply as they did before. Although the regulations came into force from 1 January 2024 and the following important amendments have been made:
- A woman will be able to bring a direct discrimination claim on grounds of breastfeeding as this will be covered by the protected characteristic of sex.
- People who do not have a protected characteristic but suffer substantially the same disadvantages because of the employer’s policy, criteria, or practice as those who possess the protected characteristic will be able to bring a claim for indirect discrimination by association.
- In the context of recruitment and access to employment and occupation, direct discrimination will also cover public statements made (even in the absence of an active recruitment process) about, for instance, refusal to recruit someone with a certain protected characteristic. This will therefore eliminate the need to prove there is an identifiable victim and an active recruitment process.
- When looking at the definition of ‘disability’ and more specifically at the impact on ‘day-to-day activities’ aspect of the disability definition it will be relevant to look at a person’s ability to fully participate in working life on an equal basis with others
- When looking at an equal pay claim and more specifically at comparators, a ‘single source’ test is introduced which means that as long as the body responsible for setting the terms (and for the alleged inequality) is the same, an employee can rely on a comparator who works for a different business.
The impact of the introduction of the Equality Act 2010 (Amendment) Regulations 2023 is that UK tribunals will also no longer have to be persuaded to interpret the Equality Act 2010 in a way which gives effect to EU equality rights.
