As set out in the government's explanatory memorandum key amendments incorporated in the Statutory Instrument to ensure that principles already established in case law are retained include:
- Special treatment - Special treatment is afforded to women in connection with pregnancy, childbirth or maternity.
- Breastfeeding - Less favourable treatment on grounds of breastfeeding constitutes direct discrimination on grounds of sex, and that this applies in the workplace as in other settings covered by the Equality Act 2010.
- Returning from maternity leave - Women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return.
- Pregnancy and maternity discrimination - Women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave under the Maternity and Parental Leave etc. Regulations 1999.
- Indirect discrimination by association - A claimant without a relevant protected characteristic, who suffers a disadvantage arising from a discriminatory provision, criterion or practice (“PCP”) together with persons with the protected characteristic may bring a claim of indirect discrimination.
- Discrimination and recruitment - Employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway.
- Equal pay - An employee is able to draw a comparison for the purposes of equal pay claims with another employee where their terms are attributable to a single body responsible for setting or continuing the pay inequality and which can restore equal treatment, or where their terms are governed by the same collective agreement.
- Disability discrimination - The definition of disability must be understood as specifically covering a person's ability to participate in working life on an equal basis with other workers.
Comment
The government is showing a commitment to enshrining key equality protections into domestic law. As noted by the Equality and Human Rights Commission these are complex issues. As the new Regulations become law we may well see a raft of cases testing the exact meaning of the legislation. It has therefore never been more important for employers to keep up-to-date.
Workplace culture should be a top priority for employers as they navigate the changing world. Uncertainty causes anxiety and impacts culture. A restatement of commitments on equality, diversity and inclusion is important especially as the governing legislation changes. As always employers which are able to engage their workforce and create and truly inclusive and diverse environment will find the journey easier.
