Government legislates to preserve EU-based discrimination law – what does this mean for employers?

Whilst we have tried to cover the main points of the draft regulations, they are complex and would therefore recommend a full read of the government's statutory guidance here. 

The government has shared early plans to update the Equality Act 2010 to keep intact the discrimination protections we have enjoyed from EU law even after Brexit. There are some exciting changes on the horizon, and a few of them are pretty important, especially since they involve rights that haven't been commonly put into action in the UK. 

To give you a bit more background, the Retained EU Law (Revocation and Reform) Act is shaking things up by ending the reign of EU law from 31st December 2023.   

In a bit of a surprise move, the government dropped more news sharing draft regulations that would tweak the Equality Act to keep various discrimination protections inspired by EU law. These changes kick in from 1st January 2024. 

According to the government, these updates will keep things running smoothly in the areas they cover and make the law a bit clearer. The goal here is to make sure the rights we've enjoyed from EU law aren't taken away. It's worth noting that while the changes may seem like fresh ideas, some of them involve decisions from the European Court of Justice that haven't really been put into action by our local appeal courts.  

How it affects you:

The voluntary sector is one of the most diverse, not only in the organisations we serve but also in our own Teams.  These changes matter if you are an employer, or if you support people who are employed, that might be affected by: 

• Discrimination 
• Maternity 
• Pay inequality 

We are not employment experts and recommend seeking advice from an someone that is if any of these changes impacts your operations. 

Key changes: 

Notably, one key amendment broadens the scope of indirect discrimination claims. Individuals can now claim indirect discrimination without sharing the same protected characteristic as the disadvantaged group. For instance, a man with childcare responsibilities may now claim indirect discrimination based on the disadvantage faced by women with similar responsibilities. 

The Equality Act amendments also introduce the single source test for equal pay, aligning with existing UK practices and is not expected to bring significant practical changes.

Another noteworthy adjustment is the expansion of the definition of disability to include impairments hindering full and effective participation in "professional life," aligning with established UK caselaw.

Maternity-related provisions see clarifications and extensions, including the removal of workplace discrimination exclusions for breastfeeding, making it clear that such discrimination is direct sex discrimination.

In the realm of recruitment, when it comes to hiring new employees, employers could be responsible for discriminatory comments even if they were not part of the official hiring process. This includes statements made by people who are not employees of the company but could still have an impact on hiring decisions.

Looking ahead, uncertainty lingers regarding potential additional changes to employment law. Some decisions from the ECJ that don't align with UK law may undergo further adjustments. The government, in its legislative actions, faces the risk of criticism if it fails to ensure alignment with certain EU decisions.