LEGISLATION UPDATE
EU case law protections to be imported via Equality Act amendments
The government has published draft legislation (the Equality Act 2010 (Amendment) Regulations 2023) to amend the Equality Act 2010, in order to import certain important discrimination protections derived from EU law into UK legislation. Some of the changes are unlikely to have significant practical impact on employers. However, employers should take note of two of the changes highlighted below which may widen the scope of discrimination claims. The proposed changes take effect from 1 January 2024.
Proposed changes with practical implications for employers
Indirect discrimination by association
Current position under the Equality Act 2010
Indirect discrimination requires a claimant to share the same protected characteristic as the group placed at the particular disadvantage.
Proposed amendments
Under EU law, an indirect discrimination claim can be brought by a person who does not share the protected characteristic which results in a group disadvantage. This position under EU law has not been applied by UK courts to date.
However, the Equality Act is now being amended so that an individual can make a claim for indirect discrimination if they can show there is a group disadvantage related to a protected characteristic and they suffer the same disadvantage, even if they do not share the same protected characteristic as the group.
What does this mean for employers?
Practically this may have significant practical ramifications for employers since the scope for indirect discrimination claims is wider.
Discrimination in recruitment
Current position under the Equality Act 2010
An employer must not discriminate against candidates, but this does not cover discrimination triggered outside of an active recruitment process and there must be an identifiable victim for a claim to be brought.
Proposed amendments
The position under EU law is wider and covers discriminatory statements outside of an active recruitment process where there is no identifiable victim and can cover third party statements. This position under EU law has not been applied by UK courts to date.
However, the Equality Act is now being amended so that employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment (including vicarious liability for statements made by certain third parties), even when there is not an active recruitment process underway, or where the claimant is not an identifiable victim. For example, a statement by a senior employee that the company is not interested in hiring more women in future.
What does this mean for employers?
This proposed change highlights the need to exercise caution around issuing or authorising statements relating to recruitment, whether or not an active recruitment process is on-going.
Other proposed changes
The proposed legislation also sets out amendments relating to the topics below. For more details on these proposed changes, click here, but in our view the changes are unlikely to have a significant practical impact on how employers already operate under existing laws and guidance.
- The definition of what amounts to a disability under the Equality Act 2010.
- Equal pay claims and comparators used.
- Discrimination on the grounds of breastfeeding.
- Protection from unfavourable treatment following a return to work from maternity leave.
- Special treatment for women in connection with pregnancy, childbirth or maternity.
