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Preservation of EU-derived discrimination protections

Regulations will reproduce in domestic law specific discrimination protections derived from EU law that would otherwise have fallen away at the end of 2023.

When the Retained EU Law (Revocation and Reform) Act 2023 comes into force at the start of 2024 there was a danger that certain discrimination protections derived from EU law would have disappeared. The government committed to preserve these rights and the Equality Act 2010 (Amendment) Regulations 2023, which come into force on 1 January 2024, amend the 2010 Act to ensure that various rights/interpretive rulings from the ECJ remain on the UK statute book. In summary, these include:

  • Associative indirect discrimination: the right to claim this was recognised in a 2015 ECJ case. The amending regulations insert a new s. 19A into the 2010 Act to enshrine such a right.
  • Definition of disability: to take account of various ECJ decisions, a new para. 5A will be added to Sch. 1 of the 2010 Act to provide that the reference in s. 6 of the 2010 Act (definition of disability) to a person’s ability to carry out normal day-to-day activities is to be taken as including a reference to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.
  • Single source: to take account of a 2003 ECJ case on the right to equal pay under art. 157, the ‘single source’ comparator test will be preserved by inserting a new ss (4A) into s. 79 of the 2010 Act – an equal pay comparison can be made where there is a single body responsible for setting/continuing the terms on which the claimant and comparator are employed.

Among the other protections preserved by the amending regulations are:

  • that less favourable treatment on the ground of breastfeeding constitutes direct discrimination on the ground of sex
  • that women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return
  • that 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, and
  • that employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway