Last reviewed 17 November 2023
From 1 January 2024, major legal changes will come about as UK law separates itself from EU law. In order to continue to offer the same protection to employee rights, the Equality Act 2010 (EqA) will need to be amended. Stacie Cheadle, Croner-i employment law researcher and writer, looks at these changes in relation to pregnancy, maternity and breastfeeding in this first of two articles.
When the UK voted to withdraw from the EU, it started a process of significant legal change. The Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) will come into force at the end of 2023 and will bring with it a removal of the requirement for UK employment judges to interpret UK law in line with EU case law. In particular, it provides for the sunset of directly effective rights, the principle of supremacy of EU law and general principles of EU law, as well as facilitating domestic courts with departing from retained EU case law by removing the interpretive effect of EU case law.
The legal system in the UK means that some rights enjoyed by employees result from an interpretation of the relevant law by a judge in a legal case. This interpretation is then binding on the courts below, and thus becomes a legal right. EU case law enjoys the same treatment, or at least it will until the end of 2023. It is therefore now necessary for rights derived from EU case law to be codified into the UK statute books or face their loss. Below, we look specifically at rights in relation to pregnancy, maternity and breastfeeding and the Equality Act 2010 (Amendment) Regulations 2023, which will amend the EqA, subject to parliamentary approval.
What is changing and why
Eight principles will be reproduced by amendments to the EqA from 1 January 2024. The first four of these are set out below, along with the background to the principle and how it will be inserted into the EqA. The remaining four will be covered in a follow-up article.
1. Women should be afforded special treatment in connection with pregnancy, childbirth or maternity
Special treatment can be afforded to women in connection with pregnancy or childbirth.
The scope of this protection is expanded to pregnancy, maternity and the period following childbirth. EU case law has found that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination.
Amendment to the EqA
Leaving the law in the current state could therefore mean that after the end of 2023, when interpretive effect falls away, the scope for preferential treatment in relation to “maternity”, and in particular occupational maternity schemes, may narrow. This will be prevented by inserting “maternity” into the relevant section and ensuring that employers can continue to offer more generous treatment for women on maternity leave.
2. Less favourable treatment on grounds of breastfeeding constitutes direct discrimination on grounds of sex
Where the protected characteristic is sex, less favourable treatment of a woman includes less favourable treatment because she is breastfeeding. However, this is expressly excluded from applying at work.
In Otero Ramos v Servicio Galego de Saúde (C-531/15), the European Court of Justice (ECJ) determined that sex discrimination at work includes less favourable treatment because of breastfeeding. This can presently be relied upon in the UK courts, but that of course will change from 1 January 2024.
Amendment to the EqA
Amendments will allow claims for direct discrimination on the grounds of breastfeeding in a work context to be made.
3. Protection from unfavourable treatment after an employee returns from maternity leave continues to apply where that treatment is in connection with the pregnancy or a pregnancy-related illness which occurred before their return
Presently, the EqA provides for “the protected period” during maternity and pregnancy which means that no comparator is required for a discrimination claim. This protection can continue beyond the protected period if the treatment relates to the implementation of a decision taken during the protected period. It does not however apply the protection to unfavourable treatment occurring after the protected period, even where it relates to the pregnancy and the protected period.
Contrary to the above, the ECJ in Brown v Rentokil (C-394/96) established that pregnancy and maternity protection extends to unfavourable treatment occurring after the protected period but because of the pregnancy or pregnancy-related illness during the protected period.
Amendment to the EqA
Changes will be made to ensure women are protected against unfavourable treatment which is because of the pregnancy or pregnancy-related illness during the protected period but which occurs after the end of the protected period.
4. Women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave
The law as it currently stands only applies the protected period if the employee has the right to compulsory, ordinary or additional maternity leave. If they don’t, then they are only protected for two weeks. As a result, for those not entitled to maternity leave under the law, a comparator must be applied outside of the two-week period.
In Commissioner of the City of London Police v Geldart  EWCA Civ 611, the Court of Appeal applied Webb v EMO Air Cargo (UK) Ltd (C-32/93) and held that when the employee doesn’t have the right to maternity leave under the law, but does under an occupational scheme, they do not need a male comparator in order to bring a claim for sex discrimination relating to maternity leave.
Amendment to the EqA
To preserve this position from 1 January 2024, the EqA will be amended to extend protections to cover maternity leave which is of a substantially similar nature to compulsory, ordinary or additional maternity leave, where it is provided for under a statutory or contractual scheme.
Whilst none of the amendments to the EqA represent a change in the law as such, they do provide clarity and certainty for employers and employees. They also ensure that employee rights remain protected and allay fears that Brexit would mean a reduction in employment rights.