The Equality Act 2010 (Amendment) Regulations 2023
This legislation ensures that some discrimination protections which came from EU law and would have disappeared at the end of 2023 due to Brexit, will remain in force in the UK.
The main points are:
The definition of disability has been widened
Under the Equality Act, a person is disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.
It has been clarified that normal daily activities include doing work on an equal basis with other workers. It can include activities which don’t happen very often, such as attending job interviews, as although these are usually infrequent, they are a normal part of working life. It can also include activities which are not common to most jobs, but which form a common part of certain jobs, such as working night shifts.
Discrimination in recruitment
It is unlawful to make hypothetical discriminatory statements in recruitment. For example, if a company stated that it would not consider employing anyone from an ethnic minority, this would be unlawful, even if there was no specific individual who had suffered as a result of this, and even if there was no active recruitment process going on at the time the comment was made.
Indirect discrimination by association
To explain this change, it would be helpful to clarify the difference between direct and indirect discrimination. The protected characteristics (against which a worker can be discriminated) are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
An example of direct discrimination: A call centre refuses to employ anyone with a physical disability.
An example of indirect discrimination: A call centre does not specifically state that it will not employ anyone with a physical disability, but it insists on having desks which are designed to be stood up at. Therefore, on a practical basis, this excludes some people with physical disabilities, such as anyone in a wheelchair.
An example of direct discrimination by association: A call centre dismisses an employee whose partner has a physical disability. The employee does not have the disability, but is linked to someone who does.
Previously, when someone claimed indirect discrimination, they needed to actually have the protected characteristic themselves, rather than being associated with someone else who has that characteristic.
In the case of Follows v Nationwide Building Society Ms, Follows was employed by Nationwide Building Society from 2011. She worked mostly from home as a senior lending manager, and she also cared for her disabled mother. In 2018, Nationwide decided to make some of the managers redundant and to insist that all of the remaining ones would be office-based, so that they could be better supervised.
Ms Follows argued that she had a good record in her appraisals and could continue to work effectively from home. Although several other employees volunteered for redundancy, their offers were rejected and Ms Follows was made redundant.
Ms Follows made several claims, including for indirect associative discrimination on the grounds of disability, and was successful. The claim was for indirect discrimination because the employer had not said that anyone caring for someone disabled could not work from home. However, they knew that the fact that Ms Follows had a disabled mother made it more likely that she would want to work from home, and so the requirement to attend the office was more likely to put her at a disadvantage. The claim was by association because Ms Follows did not have a disability herself, but was associated with her mother, who did have one.
Less favourable treatment of a worker because she is breastfeeding now constitutes direct sex discrimination. This applies to women who are in the stage of their life when they are breastfeeding, rather than just to women who breastfeed in the workplace or to a woman who is actually in the physical act of breastfeeding when the less favourable treatment happens.
Employers should make reasonable adjustments for breastfeeding employees, unless the decision not to do so is objectively justifiable. Examples of adjustments could be flexible hours, a private and clean space to express milk, and milk storage facilities such as a fridge. There is no statutory right to paid breaks to breastfeed, although many employers offer this.
Employers will be aware that they cannot discriminate against employees for being pregnant or for taking maternity leave.
Such employees are also protected against unfavourable treatment which happens after the return from maternity leave, if the unfavourable treatment relates to the pregnancy or to a pregnancy-related illness.
Equal pay claims
The Equality Act states that men and women should receive equal pay for equal work. Therefore, if a woman is claiming that she is not paid as much as a man doing the same work, she must find a man doing the same work in order to compare his pay to hers, and to see whether she has a legal case. Previously, there were some restrictions on who this comparator could be. It had to be an actual person who was employed by the same, or by an associated employer, either at the same place of work or at a different place of work but one to which common terms applied. This has been relaxed, so that a valid comparator is one from a ‘single source’. This means that a single body must be responsible for the supposed inequality between the pay of the man and the woman in question, and have the authority to correct the pay discrepancy. Consequently, there will be more people to whom employees can compare their pay, and that it will be easier for employees to bring a claim.