The Equality Act 2010 (Amendment) Regulations 2023

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The Equality Act 2010 (Amendment) Regulations 2023

The Retained EU Law (Revocation and Reform) Act 2023, which received royal assent on 29 June 2023, intends to end the supremacy of EU law from UK law by the end of December 2023. In practice, this means that EU-derived regulations in the UK will either be repealed or revoked, unless preserved by new UK law.

Whilst there are several pieces of legislation that the UK has no intention to continue being bound by, there are also important EU-derived principles which will need integrating into UK law. This is why the Government have produced the Equality Act 2010 (Amendment) Regulations 2023 (the Regulations), which was presented to Parliament on 7 November 2023.

By way of background, the Equality Act 2010 consolidated the numerous pieces of anti-discrimination legislation in the UK into a single act. It has since been largely unchanged, and therefore it is important to understand the proposed changes under the Regulations.

The headline points are as follows:

  • Claimants will be able to make a claim of indirect discrimination by association. This will cover a situation in which the Claimant does not hold a particular protected characteristic, however they suffer the same disadvantage as the person who holds that protected characteristic (in relation to the relevant provision, criterion or practice).
  • The definition of disability has been expanded upon in EU case law to include the broader definition in what constitutes ‘normal day-to-day activities’. The Regulations intend to insert a new paragraph into Schedule 1 of the Equality Act 2010, providing that ‘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’.
  • The current comparator for an equal pay claim under the Equality Act is a comparative man ‘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.’ The EU-derived law detailed a ‘single source’ test i.e. a single body must be responsible for the alleged inequality and have the power to restore equal treatment. There is no need under this test for the female and male workers, who are being compared, to have the same or an associated employer. The single source test is intended to be incorporated into the Regulations, to permit workers to make claims where the comparative man is not employed by the same or an associative employer but in instances where they may be a suitable comparator under the single source test.
  • The Regulations intend to include a cause of action, which currently does not exist within the Equality Act 2010, for workers to make claims of direct discrimination where the discrimination in question has occurred outside of an active recruitment process and where there is no identifiable person. Importantly, a claim can be made by an individual who is not affected by the discriminatory statement.

Whilst these new changes come from established EU legislation and case law, they are subject to discussion in parliament and therefore could be amended before the wording of the Act is finalised.

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