EU-derived discrimination laws to be preserved beyond 31 December

Background

The Retained EU Law (Revocation and Reform) Act 2023 will revoke specified retained direct EU legislation at the end of 2023. It also gives domestic law priority over conflicting retained direct EU law. The Retained EU Law Act forms part of the Government's plans to end the supremacy of EU law within our domestic legal framework.

Preserved rights

Certain EU-derived discrimination protections that would have disappeared under the Act are to be preserved going forward. The Government has issued draft regulations which will amend the Equality Act in order to mean that in practical terms, the law will continue to have the same effect after the end of 2023 as it does currently.

The draft regulations will ensure that the following discrimination protections will continue to apply after the Retained EU Law Act takes effect:

• the 'single source' comparator test for equal pay claims. This means claimants will continue to be able to bring equal pay claims based on comparisons with other workers for whom the same body is responsible for setting or continuing their terms of employment
• the definition of disability will be amended in relation to employment and occupation. A person's ability to carry out normal day-to-day activities will be read as including their ability to participate fully and effectively in working life on an equal basis with other workers. This will ensure the interpretation of disability in a work context can continue to take into account a person's ability to carry out an infrequent or one-off work activity
• work-related claims for direct discrimination on the grounds of breastfeeding will continue to be able to be brought
• the right to claim indirect discrimination on the basis of an association with a protected characteristic will be preserved
• employers will continue to be potentially liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even where there is not an active recruitment process underway

The Regulations will come into force on 1 January 2024.

For more information please contact Jessica Scott-Dye in our Employment team on 0117 314 5652, or complete the form below.