Five new amendments to the Equality Act hospitality needs to know about

30 November 2023
Five new amendments to the Equality Act hospitality needs to know about

From disability rights to flexible working requests, a raft of amendments are about to change the Equality Act, says Charlotte Rees-John

The government has recently published draft legislation that will bring about amendments to the Equality Act 2010. These amendments, which will come into force from 1 January 2024, aim to consolidate specific discrimination protections derived from EU case law, which would have otherwise ceased to exist due to Brexit.

After the UK's exit from the EU, the government took steps to preserve EU-derived laws in the UK's legal framework. The Retained EU Law (Revocation and Reform) Act 2023 facilitated this process. However, from the end of 2023, courts will no longer be bound to interpret EU retained law in line with the underlying directives, and the principle of supremacy of EU law will no longer apply. To address potential legal uncertainty in employment, the government plans to amend the Equality Act. These amendments aim to codify existing EU discrimination case law considered by tribunals and higher courts.

Expanded definition of disability

The current definition of disability under the Equality Act 2010 considers a physical or mental impairment that substantially and in the long-term affects someone's ability to carry out normal day-to-day activities. The new amendments will add additional wording to ensure that a person's ability to fully and effectively participate in working life on an equal basis with other workers is taken into account when evaluating normal day-to-day activities.

Protection for breastfeeding mothers

Currently, Section 13 of the Equality Act protects women from direct sex discrimination if they are treated less favourably because they are breastfeeding. However, this protection does not extend to discrimination in the workplace. The government intends to remove this exclusion, allowing women to bring direct sex discrimination claims against their employers if they are treated unfairly due to breastfeeding.

This may include a failure to conduct a personal risk assessment or provide suitable facilities for storing and expressing breast milk. However, it is unclear whether this change will grant women the right to breastfeed at work, as a previous argument on this matter was rejected by a first instance tribunal.

Special treatment of maternal women

Section 13 of the Equality Act currently allows for special treatment of women in connection with "pregnancy or childbirth". The amendments will introduce the term "maternity" to ensure the law is interpreted expansively, in line with EU case law.

Additionally, the amendments will address a gap in protection, ensuring that unfavourable treatment that occurs after the end of the protected period but results from a decision made during the protected period is still considered discriminatory.

Indirect associative discrimination

The Equality Act's Section 19 addresses indirect discrimination, which occurs when a provision, criterion or practice is discriminatory towards an individual with a relevant protected characteristic. However, the requirement for the individual to possess the protected characteristic is inconsistent with EU law. The amended wording will allow individuals to bring a claim for indirect discrimination, even if they do not possess the protected characteristic, as long as they can demonstrate they suffer the same disadvantage.

For example, men with childcare responsibilities may be able to use similar indirect sex discrimination arguments as women seeking family-friendly working arrangements.

Equal pay claims

The Equality Act stipulates that men and women should receive equal pay for equal work. The act currently requires a woman to identify an actual comparator employed by the same employer or an associated employer. However, according to the Treaty on the Functioning of the European Union, workers do not have to be employed by the same employer; their terms and conditions must be attributable to a single source. This amendment broadens the scope for equal pay claims.

While the amendments provide greater clarity for both employers and employees, some uncertainties may still need to be tested in the courts. It is crucial for the hospitality sector to familiarise itself with these changes and ensure compliance to avoid potential legal issues.

Charlotte Rees-John is a partner at Irwin Mitchell and head of its consumer sector

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