Equality Act changes

Discrimination law in the UK has evolved through a mixture of legislation and case-law, and some of this case-law was based on EU law which will no longer have direct effect or supremacy after 1 January 2024.

The Government has therefore published draft regulations which seek to preserve in UK law various principles that have been established through case law over the years:

• Individuals can bring claims for indirect discrimination on the basis of an association with a protected characteristic (i.e. the individual does not themselves need to have the protected characteristic if they suffer together with the group who do share a protected characteristic). This concept originates from a Bulgarian case where a woman who was not Roma successfully claimed indirect discrimination on the basis that she and the Roma who lived in her area all suffered the same disadvantage from a decision to install electricity meters at a different height in her district that was more heavily populated by Roma.
• The definition of disability requires consideration as to whether there is a substantial adverse impact on an individual's ability to carry out day to day activities. The Equality Act will be updated to confirm that this includes considering the ability of a person to participate fully and effectively in working life on an equal basis with other workers.
• Less favourable treatment on grounds of breastfeeding is direct discrimination on grounds of sex.
• Women are protected from less favourable treatment after they return from maternity leave where that treatment is in connection with pregnancy or a pregnancy-related illness before their return.
• Employers may be liable for direct discrimination where a discriminatory statement is made regarding recruitment, even where there is no active recruitment process at the time. This arises from an Italian case in which a lawyer said on a radio show that he would never employ a homosexual. An association successfully claimed discrimination on grounds of sexual orientation even though there was no active recruitment process and they were not a job applicant.
• The application of a “single-source” test in equal pay cases: confirming that an employee can refer to a comparator who is employed by a different employer if they both have the same source of their terms and conditions (i.e. the same body sets terms and conditions across both employers).

If you have any queries you would like to discuss regarding the Equality Act, please contact Rena Magdani or Matt McBride.