Preserving Equality: Overview of the Equality Act 2010 (Amendment) Regulations 2023 in British Law

 

This is more of a technical post but nevertheless relevant given the legislation discussed relates to the Equality Act 2010.

 

The Equality Act 2010 (Amendment) Regulations 2023 have been published in draft. These Regulations seek to amend the Equality Act 2010 to retain specific anti-discrimination provisions derived from EU law that would have otherwise been repealed under the Retained EU Law (Revocation and Reform) Act 2023. These preserved provisions include the ‘single source’ test for establishing equal pay comparisons, the right to claim indirect discrimination by association, and a definition of disability that takes into consideration an individual’s ability to engage in working life on equal terms with others. These Regulations are due to come into force on 1st January 2024.

 

The ‘single source’ comparator test will be preserved by the introduction of a new subsection (4A) into Section 79 ofthe Equality Act, defining who qualifies as a valid comparator for equal pay claims. This allows equal pay claims when there is a single entity responsible for setting the employment terms for both the claimant and the comparator, ensuring equal treatment, echoing the European Court of Justice’s decision in Lawrence and ors v Regent Office Care Ltd.

 

The right to claim indirect discrimination on the grounds of association with a protected characteristic, as recognised by the ECJ in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, will be preserved by adding a new Section 19A to the Equality Act. This will provide that indirect discrimination can be established if the claimant is put (or would be put) at ‘substantively the same disadvantage’ as persons who share the relevant protected characteristic.

 

Many readers of the AnnaKennedyOnline website will be interested to read that the definition of disability will be amended. The Regulations align with the ECJ’s ruling in HK Danmark v Dansk almennyttigt Boligselskab, amending Schedule 1 of the Equality Act. It clarifies that disability encompasses limitations resulting from physical, mental, or psychological impairments psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with others.

 

The Regulations also safeguard protections against sex discrimination related to breastfeeding, unfavourable treatment after maternity leave, pregnancy and maternity discrimination, and potential employer liability for discriminatory statements in recruitment. These Regulations ensure that crucial anti-discrimination provisions remain intact in domestic law.

 

The draft Regulations can be found here:

 

https://www.legislation.gov.uk/ukdsi/2023/9780348253191

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