Equality Act 2010
Equality Act 2010 amendments – Monday 1 January 2024
The Equality Act 2010 (Amendment) Regulations 2023 makes amendments to the existing Equality Act. Largely, the amendments work to secure EU-derived protections that were due to expire because of Brexit.
This means the amendments aren’t so much changes to the current law, but rather maintain the current position by writing EU law into English and Welsh law. However, the amendments will also include some developments to the current law, with the notable changes being:
1.Expanded definition of disability
The current definition of disability under the Equality Act 2010 finds a person to be disabled when they have a physical or mental impairment with a substantial and long-term effect on their ability to carry out normal day to day activities. The amendments will build on this current definition and will take into consideration an individual’s ability to participate in working life, on an equal basis with other workers, as a relevant factor when looking at the ‘day-to-day activities.’
This simply develops the current understanding of the definition of disability for the purposes of the Equality Act 2010. To avoid discrimination claims, we recommend that you review how your current policies may disproportionately affect disabled workers even though the amendment does not impose any new obligations on you as an employer.
2. Protection for breastfeeding mothers
The amendments also confirm that any discrimination suffered by a parent for breastfeeding at work will fall under the protected characteristic of sex. This means that a worker who suffers less favourable treatment at work due to breastfeeding will be able to claim discrimination.
Again, it will be important to review your current practices to see whether breastfeeding parents will suffer less favourable treatment at work due to breastfeeding. For example, you may want to consider implementing a breastfeeding at work policy or consider providing suitable facilities to store and express breastmilk. It’s currently unclear whether parents can demand the right to breastfeed at work.
3. Protections for women in connection with pregnancy, childbirth, or maternity
As of Monday 1 January 2024, women will be able to bring a claim against their employer if they face unfavourable treatment due to their pregnancy, childbirth, or maternity, no matter when the unfavourable treatment or the decision that led to the unfavourable treatment occurred. Currently, the unfavourable treatment or the decision that led to it must take place within what is known as the ‘protected period,’ but this will no longer be required for a woman to pursue a claim against their employer.
This doesn’t place any new obligations on employers, but you should take steps to ensure that women who are pregnant, going through childbirth or maternity aren’t getting treated unfavourably at work to avoid discrimination claims. A strong, flexible working scheme may help to avoid this.
4. Indirect associative discrimination
For someone to bring an indirect discrimination claim against their employer, they don’t necessarily have to have the relevant protected characteristic themselves. Instead, they can demonstrate that they suffer the same disadvantage as somebody with that protected characteristic because of one of their employer’s provisions, criterions, or practices.
For example, an employer requiring all their staff to work full-time in the office could cause a disadvantage to someone providing care for a disabled person. Their responsibilities may require them to spend lot of time at home, which may lead to them being dismissed as a result of their low office attendance. If they could establish that a person with the protected characteristic of disability would suffer the same disadvantage, then they may be able to bring a claim against their employer, despite not being disabled themselves.
This won’t place any new positive obligations on employers, but you should consider how your policies may cause someone with protected characteristics to suffer a disadvantage, as well as someone associated with somebody with a protected characteristic.