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  • Writer's pictureBaljit Kaur

Revisions to the Equality Act 2010: Disability

The government has now amended the Equality Act 2010, which reproduces in domestic law certain interpretive effects of retained EU law regarding equality rights. With implementation from 1 January 2024, these amendments aim to preserve key interpretive effects of retained EU equality law that would otherwise be lost due to the Retained EU Law (Revocation and Reform) Act 2023 (REUL). The EAAR seeks to address potential gaps in domestic equality protections resulting from the REUL, ensuring continuity and alignment with EU standards in this regard. EAAR stands for Equality Act 2010 Amendment regulations. The changes include:

Indirect discrimination

Indirect discrimination claims can be successful even for individuals without a protected characteristic if they suffer a disadvantage similar to those with a protected characteristic. This requires demonstrating that an employer's provision, criterion, or practice (PCP) disproportionately affects individuals with a protected characteristic, that the claimant is similarly disadvantaged, and that the PCP is not proportionate to achieving a legitimate aim.

For instance, an employee not classified as 'disabled' may claim indirect disability discrimination if a PCP, such as a strict sickness absence policy, disproportionately affects them like their disabled colleagues. These amendments broaden the scope of indirect discrimination claims to encompass those who share a substantial disadvantage with a protected group, promoting fairness and equality in the workplace.

Additionally, an employment tribunal awarded £345K in compensation to an employee for indirect associative discrimination in the case of Follows vs. Nationwide Building Society. The decision illustrates the application of the CHEZ principle, highlighting indirect discrimination based on the employee's association with her disabled mother. The employer's requirement for senior managers to switch from hybrid to office-based working resulted in the discriminatory treatment.

The definition of disability

The definition of disability under the Equality Act 2010 includes a physical or mental impairment substantially affecting one's ability to carry out normal day-to-day activities, now expanded to encompass full and effective participation in working life. This principle, established pre-EU law revocation, emphasises considering work-related aspects like lifting or standing for long periods when assessing disability. The recent amendments ensure that equality law retains its previous effect post-EU withdrawal. Businesses must stay updated on evolving discrimination legislation, aligning policies with legal requirements and promoting inclusion through regular employee training. With the new EAAR inserting a provision into Schedule 1, workers can more easily establish disability by demonstrating substantial and long-term impairment affecting their ability to participate fully and equally in the workforce alongside their colleagues.

Practical impact of the Equality Act 2010 amendments

From January 1, 2024, the EAAR will incorporate several significant EU equality rights into our domestic legislation. This shift will empower workers to directly invoke our national laws, eliminating the need to convince tribunals to interpret the Equality Act 2010 in alignment with EU equality rights. The potential revision of guidance and Codes of Practice by the Equality and Human Rights Commission regarding these amendments remains uncertain.

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