Last reviewed 24 November 2023
Amendments will be made to the Equality Act 2010 from 1 January 2024 that employers need to know about. These changes will bring clarity to post-Brexit discrimination law and enshrine a number of key employee rights onto the UK statute books. In this follow-up article, Stacie Cheadle, Croner-i employment law researcher and writer, looks at changes to the Equality Act 2010.
As a reminder, these changes are being made to the Equality Act 2010 (EqA) as a result of the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act), which comes into force at the end of December 2023. This will remove the requirement for UK judges to interpret UK law in line with EU law and case law. Because a number of employment rights are derived from this interpretation, the Government is acting to ensure they are not lost from 1 January 2024.
The first four changes are found in our previous article, Getting to grips with upcoming Equality Act changes: pregnancy, maternity and breastfeeding.
1. Indirect discrimination claims can be brought by a claimant who does not have a relevant protected characteristic, where they suffer a disadvantage arising from a discriminatory provision, criterion or practice (“PCP”) together with persons with the protected characteristic
At present, the EqA provides that a person (B) is indirectly discriminated against when another person (A) applies to them a PCP which is discriminatory in relation to a relevant protected characteristic of B’s. This wording requires the person claiming indirect discrimination to have the relevant protected characteristic.
However, in “CHEZ Razpredelenie Bulgaria” AD v Komisia za zashtita ot diskriminatsia (Case C-83/14), the European Court of Justice (ECJ) held that the principle of equal treatment means that indirect discrimination can apply in certain circumstances even when a person does not have the relevant protected characteristic. These circumstances are where they suffer together with persons who do have the relevant protected characteristic due to a disadvantage arising from the discriminatory PCP.
Amendment to the EqA
To bring this right into UK law from January 2024, the EqA will be amended as follows:
“…a person without a relevant protected characteristic (B) is discriminated against where a PCP 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; the PCP puts (or would put) B at substantively the same disadvantage as persons with the relevant protected characteristic; and the PCP is not a proportionate means of achieving a legitimate aim”.
2. Employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when they are not undergoing active recruitment
Currently, the EqA protects against discrimination by employers when deciding to whom to offer employment, but only during an active recruitment process and an identifiable victim is required.
The ECJ, in NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford (C-507/18), ruled that there can be liability for direct discrimination if a discriminatory statement is made about not wanting to recruit people that share certain protected characteristics, even where there is no identifiable victim and no recruitment process is underway. This, the ECJ said, applies even where a discriminatory statement is made by a third party, where the public would believe that the third party had sufficient influence over the employer’s recruitment policy.
Amendment to the EqA
To bring this into UK law, the EqA will be amended to provide protection from discrimination in access to employment or work-related opportunities. It will specify that discriminatory public statements, made by an employer or their representative, which signal their intent to discriminate against people sharing a protected characteristic, may amount to unlawful conduct if there is no active recruitment underway. Neither is an identifiable victim needed.
Factors to consider when determining if the relevant circumstances exist, and whether the statement is connected to the organisation’s decision making, include the context in which the statement is made and whether the organisation has attempted to distance themselves from the statement.
3. A comparator for equal pay purposes can be another employee where their terms are attributable to a single body responsible for setting or continuing the pay inequality and which can restore equal treatment, or where their terms are governed by the same collective agreement
Presently, equal pay protections provide that an employee is entitled to contractual terms, including those related to pay, that are as favourable as those of a comparator of the opposite sex in the same employment if they are employed on equal work.
An actual comparator (rather than a hypothetical one) is required under the EqA for a sex equality clause or rule to operate. This must be someone employed by the same or an associated employer and either at the same establishment or at a different establishment at which “common terms” apply.
Under EU law, however, comparisons can be made between employees in the same establishment or service and are not limited to employees working for the same employer or associated employers. Instead, EU law looks at whether the terms are attributable to a single source, ie a single body responsible for the alleged pay inequality.
Amendment to the EqA
This will be introduced into UK law by applying a new section of the EqA, allowing for a comparator to be used where a single body is responsible for setting or continuing the terms on which the claimant and their comparator are employed, and that body is in a position to ensure equal treatment between those employees in respect of such terms. A comparator whose terms are set by the same collective agreement could also be used.
4. The definition of disability must be understood as specifically covering a person’s ability to participate in working life on an equal basis with other workers
Disability is defined as: “A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
In HK Danmark acting on behalf of Ring v Dansk almennyttigt Boligselskab (C-335/11), the ECJ found the definition of disability under EU law must be understood as inclusive of people experiencing limitations related to “physical, mental or psychological impairments”, which “hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
Subsequent Employment Appeal Tribunal (EAT) judgments, including Sobhi v Commissioner of Police of the Metropolis  Appeal No. UKEAT/0518/12/BA and Igweike v TSB Bank plc  8 WLUK 313, have considered the ECJ’s definition of disability, introducing the broader interpretation of “disability” into UK law. This includes holding that “normal day-to-day activities” can include infrequent activities which are part of working duties (eg applying for a job or sitting an examination for promotion), and finding that activities that are not common to the majority of jobs, but that are common across different types of employment (eg lifting heavy items and working at night are activities common across many jobs) are relevant to determining a person’s ability to participate in working life on an equal basis with other workers.
Amendment to the EqA
Changes will be made to include the ability to participate fully and effectively in working life on an equal basis with other workers into the definition of disability, enabling the continued application of the wider definition of disability.
The changes that are being made to the EqA do not, as such, introduce new rights, but they do enable rights that have come directly from the EU to be maintained in UK law. This important step allows protection for employees to continue, as well as providing legal clarity for employers and HR practitioners.