As the clock chimed midnight on 1 January 2024, we saw the UK’s “auld acquaintance be forgot” courtesy of the Retained EU Law (Revocation and Reform) Act 2023. As we entered the new year the UK left the principle of EU law supremacy and requirement to abide by all general principles of EU law in 2023.
The precedents set by EU case law have long filled the gaps within our domestic equality legislation and papered over some of the holes in the drafting of the Equality Act 2010 the (“EqA 2010”). Due to the length of time that the UK has been required to interpret domestic legislation in line with decisions of the EU courts, many employment law protections that the UK would consider part of the furniture might be at risk. However, before the door swung shut, the Government grabbed a few principles to take with us along the way by amending the EqA 2010 with the Equality Act 2010 (Amendment) Regulations 2023 (“EqA Regulations”).
Here are some of the employee protections that are coming with us into the new year.
Pregnancy, Maternity and Breastfeeding
Under the EqA 2010 special treatment can be afforded to women in connection with “pregnancy or childbirth” and this will not amount to sex discrimination to the detriment of a man if a woman is treated differently to that man. However, this has long been given a wider interpretation by the Courts, in line with EU law, to mean pregnancy or maternity. This permits a wider scope for the special treatment as it is not limited to the period of time that a woman is pregnant or at the time of childbirth but for the period following childbirth commonly referred to as maternity. If the requirement to interpret the EqA 2010 in accordance with EU law fell away, there was a risk that this wider scope of protection for women would also be lost. The EqA Regulations therefore amend the EqA 2010 to include this period of maternity and that protection is therefore now enshrined in UK law.
EqA 2010 excluded any possible claim a woman may have for direct sex discrimination in the workplace if she is subjected to less favorable treatment due to the fact that she is breast-feeding. However, EU case law determined that such less favorable treatment would constitute sex discrimination thereby allowing employees to bring work related claims for less favorable treatment because they are breastfeeding. Section 13(7) of the EqA 2010 has therefore now been repealed to maintain that protection.
Unfavorable treatment during the protected period
The “protected period” for women is the period of time from which she is protected from being treated less favorably due to her pregnancy. Since the EU case Brown v Rentoil Ltd women have been able to bring claims for direct discrimination if they are subjected to less favorable treatment outside of the protected period, if the treatment is because of the pregnancy or a pregnancy-related illness. The amendments to the EqA 2010 reproduce this principle, maintaining the protection offered to women as provided for in Brown v Rentoil Ltd.
Under section 19 of the EqA 2010 a person claiming indirect discrimination must possess the protected characteristic in order to qualify for the protection. For example, to bring a claim for indirect sex discrimination, the person bringing the claim must have the protected characteristic which is disadvantaged by any ‘provision criterion or practice’ (PCP) applied by the employer to all staff but which disadvantages one particular sex. However, in an EU case, the European Court of Justice determined that that the principle of equal treatment can, and should, mean that this protection is afforded to those who do not share the protected characteristic who are indirectly discriminated against where they suffer alongside persons with a relevant protected characteristic, from a particular disadvantage arising from a provision, criterion or practice applied by the employer.
In the case, CHEZ Razpredelenie Bulgaria, Ms Nikolova ran a grocery shop. The shop was located in the Gizdova mahala district of Dupnitsa, Bulgaria, and most of the inhabitants were of Roma origin. Ms Nikolova was a Bulgarian national. In 1999 and 2000 an electricity company installed electricity meters in the district, however, because the company believed people of Roma origin would tamper with the meters, it installed the metres over 6 metres high from the ground. The practice of installing the meters so high was based on the assumption that the meters would otherwise be interfered with by people of Roma origin and that constituted discrimination on grounds of nationality, prohibited by Bulgarian statute. Ms Nikolova’s electricity meter was also positioned too high for her to check her meter. The question posed was whether Ms Nikolova, a Bulgarian national and who did not have the protected characteristic of ‘nationality’ (not of Roma origin), could bring a claim. The ECJ held that yes, she could; antidiscrimination laws protect everyone, not only members of an oppressed minority. The ECJ pointed to the preamble of the Race Directive that articulated the social goals of the directive as “the principle of equality.” Ms Nikolova could bring a claim for indirect discrimination on the grounds of nationality as she had suffered together with a protected group (those of Roma origin) for a discriminatory reason.
Access to Employment and Occupation
The EU Courts have ruled that employers will be liable for direct discrimination if a discriminatory statement is made about not wanting to recruit people who share protected characteristics. The ECJ has held that this principle will apply even where there is no active recruitment process ongoing and even if there is no identifiable victim. For example, taking the facts of the authority for the principle NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford (C-507/18), an Italian lawyer was found to be liable for making comments on the radio alluding to the fact that he would not hire a homosexual lawyer. There were no vacancies at the law firm at which he worked and no member of the Associazione Avvocatura per i diritti LGBTI – Rete Lenford, a body who fights against discrimination based on sexual orientation and gender identity, had ever applied for a role. Never-the-less the remarks made on the radio programme were capable of falling within the scope of unlawful discrimination. The EqA 2010 will be amended to preserve this principle.
Article 157 on the Treaty of the Functioning of the European Union (the ‘Treaty’) requires that member states ensure that the “principle of equal pay for male and female workers for equal work or work of equal value is applied” and this principle is reflected in the EqA 2010. However, a requirement under the EqA 2010 is that to bring a claim, one must be able to point to an actual comparator doing equal work or work of an equal value, of the opposite sex, who is remunerated differently. The comparator must be employed by the same or an associated employer and either at the same establishment, or at a different establishment at which ‘common terms’ apply.
Article 157 allows for comparisons to be drawn between employees in the same establishment or service and comparisons are not confined to employees working for the same employer or associated employers. Under the Treaty, the question is whether there is a single body responsible for the alleged pay inequality and which can restore equal treatment which therefore widens the possible pool of comparators beyond just the same employer or associated employer. The EqA Regulations amend the EqA to allow a claimant bringing an equal pay claim to be able to point to that wider pool of comparators.
Definition of disability
Under the original wording of the EqA 2010 the definition of a disability is, “A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to- day activities.” This provision gave effect to the Framework Directive prohibiting discrimination on the basis of disability.
The case of HK Danmark acting on behalf of Ring v Dansk Almennyttigt Boligselskab (the “HK Case”), determined that the definition of disability under the Framework Directive to be any “physical, mental or psychological impairments” which “hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
When interpreting the reference to “normal day-to-day activities” in line with the Framework Directive and the HK Case the domestic courts have considered that “normal day-to-day activities” include:
- activities that are infrequent, if they are part of participation in working life (e.g. applying for a job or promotion); and
- activities that are not common to the majority of jobs but that are common across different types of employment (e.g. lifting heavy objects).
The EqA Regulations enshrine this principle by inserting a new provision into the EqA 2010 defining disability by reference to a persons’ “ability to participate fully and effectively in working life on an equal basis with other workers”, akin to the wording in the HK Case.
The changes to the EqA 2010 are intended to maintain the protections that are already in place for employees and not to introduce new ones. The first parliamentary debate on the regulations was held on 13 December 2023, and the regulations took effect on 1 January 2024. As highlighted by Baroness Thornton it is a “little concerning” that the government were, “getting around to reinstating these protections only a matter of weeks before they could have disappeared.” Retained EU Law (Revocation and Reform) Act 2023 may have demolished the power that EU law has over the way the domestic courts interpret legislation, but once the dust settles, might there be other protections that we forgot to pack?
If you need advice in relation to the issues of discrimination and equality, or indeed any other employment related issue, please do not hesitate to contact Linky Trott or any other member of the Employment Team.
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