UK: EU discrimination case law to be enshrined in legislation to ensure rights retained post 1 January 2024

The Government has published draft regulations amending the Equality Act 2010 in order to reproduce in domestic law rights and protections developed by EU case law (which might otherwise be departed from by domestic courts after 1 January 2024, pursuant to the Retained EU Law (Revocation and Reform) Act 2023).  The Equality Act will be amended with effect from 1 January 2024 to set out expressly that:

• associative indirect discrimination is prohibited (subject to the usual objective justification defence): where a group with one of the protected characteristics (eg sex, race etc - but not pregnancy/maternity) is put at a disadvantage by a provision, criterion or practice, someone without the characteristic but who suffers substantively the same disadvantage as the group can also bring an indirect discrimination claim.  This reflects the law developed in Chez and recently applied by a domestic tribunal in Rollett v BA in allowing claims from those who 'suffer alongside' a protected group.  The Government has not adopted the broader test applied by the tribunal in Follows, of covering claimants whose disadvantage arises out of the fact they are associated with (eg a carer of) someone with a protected characteristic, so tribunals will remain free to diverge from this ruling.
• 'single source' equal pay claims are permitted - claimants can bring an equal pay claim comparing themselves with others whose terms are set by a single body that is in a position to ensure equal treatment or governed by the same collective agreement, regardless of whether they have the same employer.  Currently claimants have this right but only as a directly effective EU treaty right, as under domestic law the comparator has to be employed by the same (or an associated) employer.
• in relation to the ability to carry out 'normal day-to-day activities', which an employee must show to be impaired to satisfy the statutory definition of disability, this can include working activities, ie an inability "to participate fully and effectively in working life on an equal basis with other workers" will be enough.  The Explanatory Memorandum notes that the EAT has already given effect to EU caselaw to include normal activities which are part of working life, and has held that these do not need to be frequent (so could include job applications or examinations) nor do they have to be common to the majority of jobs - provided they are found across a range of different types of employment.  Tribunals have disregarded inability to perform certain highly-skilled, specialised working or other activities.  The Government clearly intends the new definition to be interpreted in the same way.
• direct sex discrimination at work includes where a woman is treated less favourably because she is breastfeeding. This is intended to codify the EU case of Ramos (which held that failure to carry out a breastfeeding risk assessment was direct sex discrimination).  It appears to cover treatment because of a woman's status as a breastfeeding woman, rather than imposing a duty to accommodate breastfeeding during working hours (although a failure to do so could amount to other forms of discrimination or harassment depending on the facts - the case of Mellor is an example).
• it is not direct sex discrimination to afford special treatment to a woman in connection with maternity (in addition to pregnancy and childbirth). (Domestic case law has established that "special treatment" is only lawful if it goes no further than is reasonably necessary to compensate for the disadvantages occasioned by that condition.)
• it is pregnancy and maternity discrimination to treat a woman unfavourably in connection with their pregnancy or a pregnancy-related illness during pregnancy/maternity leave, including where the unfavourable treatment occurs after the woman returns from maternity leave (currently the Equality Act only expressly covers post-leave treatment based on a decision taken by the employer prior to leave ending).
• the maternity protections extend to individuals exercising other (eg contractual) workplace maternity rights substantially similar to the statutory regime (ignoring different durations).
• employers may be liable for direct discrimination (actionable by the EHRC) if a discriminatory statement is made regarding their recruitment, even if there is no active recruitment process underway.  This includes where the statement is made by someone who is not employed by the employer and is not authorised to make the statement, if there are reasonable grounds for a section of the public to believe that the individual is capable of exercising decisive influence on the employer's recruitment decisions. The amendments set out the factors established by EU case law as relevant to whether there are such reasonable grounds: the status of the individual, the nature, content and context of the statement, and what steps the employer has taken to disassociate themselves from the statement.

The Government is not going to issue any new guidance, given that the intention is for there to be no change to the overall effect of the law - although obviously that will be determined by future tribunal rulings on the meaning of the new drafting.

Once the regulations have been approved by Parliament, employers may wish to carry out refresher training for HR on these issues.  Those with detailed equal opportunities policies should also ensure that any descriptions of the types of potential legal claims are up to date.