Retention of equality rights post-Brexit
21 November 2023
Draft regulations have been published by the Government in order to retain certain principles of equality and discrimination protection deriving from EU case law, to come into force on 1 January 2024.
As a result of the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act), certain pieces of retained EU legislation will be revoked on 31 December 2023, along with rights derived directly from EU treaties and some EU directives. In addition, the Act abolishes the principle of supremacy that has applied to EU law. This means that UK courts and tribunals will no longer be required to interpret retained EU law (to be known as “assimilated law”) in line with the wording and purpose of the underlying EU directive and will no longer be bound by decisions of the European Court of Justice (ECJ).
The effect of the REUL Act means that certain principles deriving from previous ECJ decisions, which currently apply in relation to the interpretation of the Equality Act 2010, will no longer apply after 1 January 2024, unless they are expressly introduced within the legislation. The draft regulations therefore seek to introduce a number of amendments to the Equality Act 2010, codifying the additional rights that derive from historic ECJ judgments.
In summary, these are the proposed amendments to the Equality Act 2010 that will apply from 1 January 2024.
- Provision to clarify that to establish an equal pay claim, a comparator can be used if a ‘single source’ is responsible for setting or continuing the terms on which both the claimant and comparator are employed.
- Express provision to allow claims for indirect discrimination based on an association with a protected characteristic, for those who do not themselves share that protected characteristic but who suffer the same disadvantage resulting from the employer’s provision, criterion or practice.
- An adjustment to the definition of ‘disabilty’ to make it clear that the reference to “normal day to day activities” within the definition includes a person’s ability to participate fully and effectively in working life on an equal basis with other workers.
- Specifying that less favourable treatment due to breastfeeding constitutes direct discrimination on the grounds of sex.
- Providing that women are protected from unfavourable treatment after they return to work from maternity leave, if the treatment is in connection with the pregnancy or a pregnancy-related illness prior to their return.
- Specifying that liability for unlawful discrimination may arise if an employer makes a discriminatory statement about recruitment, even in circumstances when there is no active recruitment process underway.
- An extension to the meaning of ‘protected period’ for statutory maternity leave purposes to cover those whose right to maternity leave arises under an occupational scheme.
It is important to note that these amendments do not introduce any new rights or change any current protections under the Equality Act 2010. It means that the existing rights derived from ECJ decisions are preserved beyond 1 January 2024.
In contrast, the amendments resulting from the new Worker Protection (Amendment of Equality Act 2010) Act 2023, which was granted Royal Assent on 26 October 2023, will introduce a new duty for employers to take ‘reasonable steps’ to prevent the sexual harassment of their employees. This is due to take effect from October 2024.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2023.