At a glance

• The Equality Act 2010 (Amendment) Regulations 2023 (Amendment Regulations) came into effect on 1 January 2024.
• The Amendment Regulations incorporate in domestic law the effect of ECJ decisions interpreting discrimination law in the following areas:
  • Indirect discrimination where a person without a relevant protected characteristic suffers the same disadvantage as those with that protected characteristic.
  • Direct discrimination related to pregnancy, maternity and breastfeeding
  • Direct discrimination in the context of access to employment and occupation as regards public statements outside of an active recruitment process
  • The right to equal pay where employees’ terms are attributable to a single source (Article 157 of the Treaty on the Functioning of the European Union (TFEU))
  • The definition of disability in relation to employment and occupation

The Equality Act 2010 (Amendment) Regulations 2023 (Amendment Regulations) came into effect on 1 January 2024.  The purpose of the Amendment Regulations 2023 is to reproduce in the Equality Act 2010 (EqA) certain interpretive effects of retained EU law which provide protection against discrimination, and which would otherwise have ceased to apply from the end of 2023 because of the Retained EU Law (Revocation and Reform) Act 2023.

The changes relate to:

• Indirect discrimination where a person without a relevant protected characteristic suffers substantively the same disadvantage as those with that protected characteristic.
• Direct discrimination related to pregnancy, maternity and breastfeeding.
• Direct discrimination in the context of access to employment and occupation as regards public statements outside of an active recruitment process,
• The right to equal pay where employees’ terms are attributable to a single source (Article 157 of the Treaty on the Functioning of the European Union (TFEU)).
• The definition of disability in relation to employment and occupation.

Indirect discrimination

Section 19 of the EqA provides that indirect discrimination may occur where A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s. The person claiming indirect discrimination must themselves have the relevant protected characteristic. However, the requirement for B to have the protected characteristic is not a requirement of EU law. In CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia the ECJ held that a claimant can establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group insofar as the claimant suffers the same disadvantage as the group or person that is discriminated against.

CHEZ installed electricity meters.  Ordinarily they were installed in people’s homes making them accessible and easy to read.  In areas perceived as Roma, electricity meters were placed on electricity pylons at 6-7m height meaning that they are largely inaccessible. The primary victims of CHEZ’s decision to place electricity meters out of reach were the Roma people who were effectively targeted due to the belief that Roma people were more likely to steal electricity than non-Roma communities. The secondary victims were the non-Roma people who lived and worked alongside the primary victims in the affected community. The claimant in CHEZ was one such secondary victim: a shop owner who was unable to read her meter due to its inaccessible height. The ECJ held that she was able to bring a claim of indirect discrimination.

CHEZ therefore extends indirect discrimination to cases where there is an inability to distinguish between primary and secondary victims in relation to the negative impact of the PCP ie where a person faces the same disadvantage as a group which do have a protected characteristic. This is sometimes referred to as ‘indirect discrimination by association’ but that term mischaracterises the effect of CHEZ as it implies that some type of personal relationship between the primary and secondary victims is necessary. Instead, the principle is that primary and secondary victims should be protected to the same extent where they are essentially indistinguishable in terms of the impact of the measure which is alleged to be indirectly discriminatory. A relationship between a primary and secondary victim is not a necessary ingredient to a claim, although it is likely to exist in many cases.

To give effect to this principle, the Amendment Regulations insert new s.19A in the EqA which states:

19A.    Indirect discrimination: same disadvantage

(1) A person (A) discriminates against another (B) if—

(a) A applies to B a provision, criterion or practice,

(b) A also applies, or would apply, the   provision, criterion or practice to—

(i) persons who share a relevant protected characteristic,   and

(ii) persons who do not share that relevant protected characteristic,

(c) B does not share that relevant protected characteristic,

(d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular   disadvantage when compared with persons who do not share the relevant   protected characteristic,

(e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected   characteristic, and

(f) A cannot show that the provision, criterion, or practice is a proportionate means of achieving a legitimate aim.

New s.19A applies to all the protected characteristics. It is important to note that although s.19A increases the pool of employees who can potentially bring a claim, it is still necessary for there to be underlying indirect discrimination against people with a protected characteristic, and there is still scope for justification.

The clearest example of a s.19A claim is a man who is the primary carer for children. He cannot bring an indirect sex discrimination claim arising from inflexible working practices because generally it is women who experience the disadvantage of the PCP.  Under CHEZ, and now s.19A, he could bring a claim by demonstrating the impact of the PCP of the working practice on women.  The male primary carer does not need to know or have any type of relationship with the women who also work in his place of employment – all that matters is that the PCP creates the same disadvantage for mostly mothers and him.  The man would be in the same position as the mothers since he is also a primary carer, and this is enough to create the potential for a claim.

Another potential example is given by a preliminary decision in the Reading Employment Tribunal from December 2022: Rollett & others v. British Airways plc. In this case, the employer made changes to shift patterns which allegedly constituted indirect race discrimination, as the changes made life more difficult for employees commuting from mainland Europe, but not for those living in the UK. The lead claimant lived in continental Europe and therefore suffered in the same way as those harmed by the change to shift patterns. However, the claimant was British, and therefore did not have the protected characteristic of race.

However, some of the other cases which have been decided based on so-called associative indirect discrimination may not give rise to a claim under s.19A. In Follows v. Nationwide Building Society the claimant’s mother was disabled, and the claimant’s working pattern had been changed to let her care for her mother. In a redundancy exercise, the claimant was dismissed, despite a sufficient number of other employees volunteering for redundancy. The tribunal held that this was indirect discrimination by association. However, it is unlikely that these circumstances would give rise to a claim under s.19A EqA.

Special treatment afforded to women in connection with pregnancy, childbirth or maternity

Section 13(6)(b) of the EqA provided that women may be afforded special treatment in connection with ‘pregnancy or childbirth’. However, EU case law is more expansive and makes it clear that any unfavourable treatment of a woman related to ‘pregnancy or maternity’ constitutes direct discrimination on grounds of sex. The Amendment Regulations therefore insert the word ‘maternity’ into section 13(6)(b).

Direct discrimination related to breastfeeding

Section 13(6)(a) of the EqA provides that, for the purposes of direct discrimination, where the protected characteristic is sex, less favourable treatment of a woman includes less favourable treatment because she is breastfeeding. However, that section is expressly stated not to apply to discrimination at work. In Otero Ramos v Servicio Galego de Saude the ECJ held that less favourable treatment of a female worker due to her being a breastfeeding woman must constitute direct discrimination on grounds of sex. Women could therefore bring a work-related claim for direct sex discrimination because of treatment related to breastfeeding, despite the exclusion. The Amendment Regulations give effect to the principle in Otero Ramos.

Unfavourable treatment after return from maternity leave in connection with pregnancy or a pregnancy-related illness occurring before their return

Section 18 of the EqA  prohibits pregnancy and maternity discrimination in the workplace during the ‘protected period’, being the duration of pregnancy and any statutory maternity leave period (or the period of two weeks after the end of pregnancy if there is no entitlement to statutory maternity leave). If the unfavourable treatment takes place after the end of the protected period but results from a decision taken during the protected period, it was regarded as having taken place during that period. However, protection did not extend to unfavourable treatment occurring after the protected period but because of the pregnancy and protected period. In Brown v Rentokil Ltd the ECJ made clear that unfavourable treatment after the end of the protected period will be discriminatory if it is because of pregnancy or pregnancy-related illness during the protected period. The Amendment Regulations amend section 18 by removing section 18(5) and inserting references to treatment during the protected period. These amendments apply in relation to treatment occurring on or after 1 January 2024, regardless of whether the protected period ends before, on or after that date.

Direct discrimination relating to access to work

Section 39(1) of the EqA prohibited discrimination by an employer when deciding to whom to offer employment (and similar provisions apply to other categories of work). It did not specifically prohibit discrimination occurring outside an active recruitment process, and there had to be an identifiable victim. In NH v Associazione Avvocatura per i diritti LGBTI: Rete Lenford the ECJ held that employers may be liable for direct discrimination in relation to discriminatory statements made outside of an active recruitment process about not wanting to employ people with certain protected characteristics, even where there is no identifiable victim. The judgment also clarified that, where a discriminatory statement is made by a third party, this may be treated as having been made by the employer in certain circumstances. The Amendment Regulations insert a new section 60A (Discriminatory statements) into the EqA which prohibits discriminatory statements directed to the public or a section of the public in connection with decisions about to whom to offer employment or other form of work. Statements made by third parties are to be treated as made by the employer if there are reasonable grounds for the public or a section of the public to believe that the person making the statement is capable of exercising decisive influence on the employment or work decision. Relevant factors are set out to assist with determining whether a statement is made in connection with a relevant decision and whether there are reasonable grounds to believe the person making the statement has sufficient influence on the employer. There is no need for a person bringing a claim to have been affected by the discriminatory statement.

Equal pay where employees’ terms are attributable to a single source

The EqA provides for the principle that men and women should receive equal pay for equal work, as set out in Article 157 of the Treaty on the Functioning of the European Union (TFEU). A woman bringing an equal pay claim must compare her contractual terms with those of a comparable man. Section 79 of the EqA requires an actual comparator who is employed by the same or an associated employer, either at the same establishment or at a different establishment at which common terms apply. Article 157 allows comparisons to be made between workers in the same establishment or service. There is no need for the workers to have the same or associated employer; the test is that the workers’ terms and conditions must be attributable to a single source, that is, a single body must be responsible for the alleged inequality and have the power to restore equal treatment. These treaty-derived, directly effective rights have been recognised in a number of domestic and EU cases. The Amendment Regulations amend section 79 of the EqA to insert new sub-sections (4A) and (4B). New sub-section (4A) codifies the single source test and new sub-section (4B) provides that a worker will be a comparator if the terms on which the claimant and the comparator are employed are governed by the same collective agreement.

Definition of disability

Section 6(1) of the EqA provided that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In HK Danmark v Dansk almennyttigt Boligselskab the ECJ held that the concept of disability must include people suffering from a limitation which results in particular in physical, mental or psychological impairments which in interaction with various barriers may hinder full and effective participation in professional life on an equal basis with other workers. This is a potentially broader definition than that set out in section 6(1) of the EqA. The Amendment Regulations insert a new paragraph (5A) into Schedule 1 of the EqA. This explicitly provides that references in section 6(1) to a person’s ability to carry out normal day-to-day activities includes a person’s ability to participate fully and effectively in working life on an equal basis with other workers.

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