This is a busy time for HR professionals and business owners alike. Not only are you required to tie up any loose ends from the previous financial year, you also need to make sure that you’re fully
In November 2023, the UK Government announced changes to the Equality Act 2010 in order to retain some aspects of EU law to reflect recent decisions in the European Courts of Justice after the UK left the European Union. These changes, collectively outlined in the ‘Equality Act 2010 (Amendment) Regulations 2023’ (referred to as the ‘Amendment Regulations’) took effect from 1st January 2024, and cover a range of direct and indirect discrimination case scenarios that employers should take notice of.
An extension of indirect discrimination protection by association
Changes have been made to include protection against indirect discrimination to persons who substantively suffer the same disadvantage(s) from an organisation’s provisions, customs or practices (PCPs). This means that protection from disadvantages suffered by people with protected characteristics because of how an organisation behaves (e.g. setting early morning meetings which disadvantage those with childcare responsibilities) now extends indirectly to a broader pool, even if those in the broader pool do not share the same protected characteristic(s) themselves. This follows the ECJ decision in 2015 against a major Bulgarian energy utilities provider.
Direct sex discrimination related to pregnancy, childbirth, and breastfeeding
The law is now clear that any detrimental treatment towards women related to them being pregnant, that impacts them exercising their maternity rights, or results in poor treatment before, during or after taking maternity leave in relation to pregnancy or childbirth constitutes direct sex discrimination. This includes everything from refusing or withdrawing job offers after pregnancy is outlined to a potential employer, right through to failures related to bonus, performance, salary awards or redundancy consultations. It
This revised definition can be read alongside the ‘Protection from Redundancy (Pregnancy and Family Leave) Act 2023’, which increases priority for alternative employment as protection from redundancy, and the new ‘Maternity Leave, Adoption and Shared Parental Leave (Amendment) Regulations 2024’, which extends the protected period to 18 months after maternity or adoption leave ends. These two additional pieces of law came into force on 6th April 2024.
The Amendment Regulations also include protection from detrimental treatment of those who are breastfeeding whilst working; failure to carry out meaningful and effective risk assessments for breastfeeding mothers, or to provide access to clean, safe and private areas to express and store their milk in the workplace, constitutes direct sex discrimination. The CJEU ruled on this matter against a Spanish hospital in 2017, and this is now a fundamental change to what was previously accepted legal practice in the UK, wrapping in Health & Safety law with Employment and Equal Rights legislation.
Direct discrimination regarding recruitment statements and practices
This relates to the prohibitions of discrimination in the recruitment process, preventing access to work or equal opportunities for job applicants with protected characteristics. The protection now extends to discriminatory practices or statements made by organisations or directors/managers (or influential third parties, such as appointed recruitment agencies) relating to bias or inequal practices.
Discriminatory practices no longer require an identifiable ‘victim’, i.e. a job applicant or candidate, as a direct recipient of the discrimination; the prohibition and protection applies even when there are no ongoing active recruitment activities underway within an organisation. The CJEU ruled on a case involving an Italian legal firm on this matter in 2020.
Amendments to guidance on day-to-day activities for the definition of disability
There is now an explicit definition guiding what constitutes a disability in comparison to other workers for equal impact purposes, following a 2013 Danish ruling and later UK decisions in Employment Appeal Tribunals. This means that, when considering limitations on participation in day-to-day activities and professional capacity to meet the definition of disability, organisations need to compare a person’s ability to participate more broadly, on an equal basis with other workers. 
Clarity on a ‘single source’ test for equal pay comparators
This is an expansion to the comparison element in equal pay claims, whereby an equal pay comparator can feasibly work for a different business, so long as the body responsible for setting the terms is one and the same – this could open up comparators in equal pay claims for union members to the broader union membership, for example, rather than having to look for a comparator within the same organisation.
Depending on the size of your business and other factors that may be at play, these Amendments may require you to make some considered changes; this could be to how your organisation operates, the policies, procedures and staff handbooks you rely on for everyday guidance, or the training that you provide to your managers and supervisors. Or, it could mean that all of these are steps that you need to take.
Need help?
We can help, no matter how small or large the impact of these Amendments on your business. With that in mind, pick up the phone or get in touch; we can arrange to have a discussion around the changes that you may need to implement, so you can keep your with peace of mind. This is an ideal time of year to carry out an audit of your policies and procedures, or to run some line manager training refresher courses, to make sure that you’re fulfilling your legal responsibilities.
By Kim Bradford