Statutory Instruments
2023 No. 1425
RETAINED EU LAW REFORM
EQUALITY
The Equality Act 2010 (Amendment) Regulations 2023
Made
19th December 2023
Coming into force
1st January 2024
The Secretary of State makes these Regulations in exercise of the powers conferred by sections 12(8), 13(2), (3) and (7) and 20(1) of the Retained EU Law (Revocation and Reform) Act 2023( 1 ).
The Secretary of State is a relevant national authority( 2 ) for the purposes of section 12 of that Act.
In accordance with paragraph 5(1) of Schedule 5 to that Act, a draft of this instrument has been laid before, and approved by a resolution of, each House of Parliament.
Citation, commencement and extent
1. —(1) These Regulations may be cited as the Equality Act 2010 (Amendment) Regulations 2023.
(2) These Regulations come into force on 1st January 2024.
(3) These Regulations extend to England and Wales and Scotland.
Pregnancy, maternity and breastfeeding
2. —(1)The Equality Act 2010( 3 ) is amended in accordance with paragraphs (2) to (10) .
(2) In section 13 (direct discrimination)—
(a) in subsection (6)(b), for “or childbirth” substitute “, childbirth or maternity” ;
(b) omit subsection (7).
(3)Section 18 (pregnancy and maternity discrimination: work cases) is amended in accordance with paragraphs (4) to (10) .
(4) In subsection (2)—
(a) in the opening words, after “ in ” (in the first place it occurs) insert “or after” ;
(b) in paragraph (b), for “as a result of it” substitute “in that protected period as a result of the pregnancy” .
(5) In subsection (3), after “leave” insert “or on equivalent compulsory maternity leave” .
(6) In subsection (4), after “leave” insert “or a right to equivalent maternity leave” .
(7) Omit subsection (5).
(8) In subsection (6)—
(a) after paragraph (a) insert—
“ (aa) if she does not have that right, but has a right to equivalent maternity leave, at the end of that leave period, or (if earlier) when she returns to work after the pregnancy; ” ;
(b) in paragraph (b), for “that right” substitute “a right as described in paragraph (a) or (aa)” .
(9) After subsection (6), insert—
“ (6A) For the purposes of this section—
“ equivalent compulsory maternity leave ” means a period of leave—
which is of a substantially similar nature (regardless of its length) to compulsory maternity leave, and
which is provided for under a statutory or contractual scheme;
“ equivalent maternity leave ” means a period of leave—
which is of a substantially similar nature (regardless of its length) to ordinary or additional maternity leave or both, and
which is provided for under a statutory or contractual scheme. ” .
(10) In subsection (7)(a), after “ in ” (in the first place it occurs) insert “or after” .
(11) The amendments made by paragraphs (4) to (10) apply in relation to treatment occurring on or after 1st January 2024, but for that purpose it does not matter whether the protected period concerned ends before that date or on or after it.
Indirect discrimination: same disadvantage
3. —(1)The Equality Act 2010 is amended in accordance with paragraphs (2) to (7) .
(2) After section 19 (indirect discrimination) insert—
“ 19A. Indirect discrimination: same disadvantage
(1) A person (A) discriminates against another (B) if—
(a) A applies to B a provision, criterion or practice,
(b) A also applies, or would apply, the provision, criterion or practice to—
(i) persons who share a relevant protected characteristic, and
(ii) persons who do not share that relevant protected characteristic,
(c) B does not share that relevant protected characteristic,
(d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic,
(e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected characteristic, and
(f) A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
(2) The relevant protected characteristics for the purposes of this section are—
age;
disability;
gender reassignment;
marriage and civil partnership;
race;
religion or belief;
sex;
sexual orientation. ” .
(3) In section 23(1) (comparison by reference to circumstances), for “or 19” substitute “19 or 19A” .
(4) In section 25 (references to particular strands of discrimination), in each of the following places after “section 19” insert “or 19A” —
(a) subsection (1)(b);
(b) subsection (2)(c);
(c) subsection (3)(c);
(d) subsection (4)(b);
(e) subsection (6)(b);
(f) subsection (7)(b);
(g) subsection (8)(b);
(h) subsection (9)(b).
(5) In section 119(5)(a) (remedies), after “section 19” insert “or 19A” .
(6) In section 124(4)(a) (remedies: general), after “section 19” insert “or 19A” .
(7) In Schedule 28 (definitions), in the second column of the row beginning “Discrimination”, for “19” substitute “19A” .
(8) In section 24A(1)(e) of the Equality Act 2006(enforcement powers: supplemental)( 4 ), after “section 19” insert “or 19A” .
Access to employment etc
4. —(1)The Equality Act 2010 is amended as follows.
(2) In the italic heading before section 60 (enquiries about disability and health) after “Recruitment” insert “etc” .
(3) In section 60 (enquiries about disability and health), in subsection (11) after paragraph (j) insert—
“ (k) section 60A(1). ” .
(4) After section 60 insert—
“ 60A. Discriminatory statements
(1) A person (A) must not make a discriminatory statement in connection with a relevant decision that A makes or might make.
(2) References in this section to a “relevant decision” are to be determined as follows—
| Where A is— | A relevant decision is— |
|---|---|
| An employer | Deciding to whom to offer employment |
| A principal (as defined by section 41(5)) | Deciding whether to allow a contract worker (as defined by section 41(7)) to do, or to continue to do, work |
| A firm or proposed firm (as defined by section 46(2) and (3)) | Deciding to whom to offer a position as a partner (read in accordance with section 44(8)) |
| An LLP or proposed LLP (as defined by section 46(4) and (5)) | Deciding to whom to offer a position as a member |
| A barrister or a barrister’s clerk (read in accordance with section 47(8)) | Deciding to whom to offer a pupillage or tenancy |
| An advocate (as defined by section 48(9)) or an advocate’s clerk (read in accordance with section 48(8)) | Deciding who to take as a devil or to whom to offer membership of a stable |
| A person with power to make an appointment to a personal office (as defined by section 49(2)) | Deciding to whom to offer the appointment |
| A person with power to make an appointment to a public office within section 50(2)(a), (b) or (d) | Deciding to whom to offer the appointment |
| A person with power to make a recommendation for or give approval to an appointment to a public office within section 50(2)(a), (b) or (d) (read in accordance with section 51(5)) | Deciding who to recommend for appointment or to whose appointment to give approval |
| A qualifications body (as defined by section 54) | Deciding to whom to confer a relevant qualification (as defined by section 54) |
| A person concerned with the provision of an employment service (read in accordance with section 56) | Deciding on the selection of persons to whom to provide, or to whom to offer to provide, the employment service |
| A trade organisation (as defined by section 57(7)) | Deciding to whom to offer membership of the organisation. |
(3) For the purposes of subsection (1) a statement is discriminatory if—
(a) it is directed to the public or a section of the public, and
(b) were it made in connection with a relevant decision, the making of it would amount to treatment of a person that is direct discrimination.
(4) A statement made by a person (B) who—
(a) is not an employee of A acting in the course of B’s employment, and
(b) is not an agent of A acting with A’s authority,
is to be treated for the purposes of this section as if made by A if there are reasonable grounds for the public, or a section of the public, to believe that B is capable of exercising decisive influence on the making by A of a relevant decision.
(5) Regard is to be had (among other things) to the factors mentioned in subsection (6) when determining—
(a) whether a statement is made in connection with a relevant decision for the purposes of subsection (1);
(b) whether there are reasonable grounds for the belief mentioned in subsection (4).
(6) The factors are—
(a) the status of the person making the statement at the time it is made;
(b) the nature and content of the statement;
(c) the context in which the statement is made;
(d) in the case of a statement that A is treated as having made by virtue of subsection (4), the steps (if any) taken by A to disassociate A from the statement made by B.
(7) It does not matter for the purposes of this section whether or not—
(a) an individual has or may have been affected by the discriminatory statement in question;
(b) A has made, or plans to make, arrangements which would involve the making of a relevant decision.
(8) A contravention of subsection (1) (or a contravention of section 111 or 112 that relates to a contravention of subsection (1)) is enforceable as an unlawful act under Part 1 of the Equality Act 2006 (and, by virtue of section 120(8), is enforceable only by the Commission ( 5 ) under that Part).
(9) In subsection (3) the reference to direct discrimination is to a contravention of this Act by virtue of section 13 or 18.
(10) Nothing in this section limits or otherwise affects—
(a) other prohibitions imposed by this Chapter;
(b) the application of section 109 (liability of employers and principals for acts of employees and agents). ” .
(5) In section 120 (jurisdiction of employment tribunal), in subsection (8) after “60(1)” insert “or 60A(1)” .
(6) In Schedule 9 (work: exceptions)—
(a) in paragraph 1(2), after paragraph (g) insert—
“ (h) section 60A(1). ” ;
(b) in paragraph 2(2), after paragraph (d) insert—
“ (e) section 60A(1). ” ;
(c) in paragraph 4(1), after “or (2)(b)” insert “or section 60A(1)” ;
(d) in paragraph 5, in each of sub-paragraphs (1), (2) and (3), after “section 55(1) or (2)” insert “or section 60A(1)” .
Comparators for purposes of equal pay
5. —(1)Section 79 of the Equality Act 2010 (comparators) is amended as follows.
(2) In subsection (2), for “(3) or (4)” substitute “(3), (4), (4A) or (4B)” .
(3) After subsection (4) insert—
“ (4A) This subsection applies if a single body—
(a) is responsible for setting or continuing the terms on which A and B are employed, and
(b) is in a position to ensure equal treatment between A and B in respect of such terms.
(4B) This subsection applies if the terms on which A and B are employed are governed by the same collective agreement. ” .
(4) After subsection (9) insert—
“ (10) In subsection (4B) “ collective agreement ” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 ( 6 ) (see section 178 of that Act). ” .
Disability
6. In Schedule 1 to the Equality Act 2010(disability: supplementary provision), after paragraph 5 insert—
“ Normal day-to-day activities
5A. —(1) This paragraph has effect for the purposes of the application to the protected characteristic of disability of—
(a) Part 5 (work);
(b) Part 8 (prohibited conduct: ancillary), so far as relating to Part 5;
(c) Part 10 (contracts), so far as relating to Part 5;
(d) Schedule 21 (reasonable adjustments: supplementary), so far as applying for the purposes of Schedule 8.
(2) References in the relevant provisions to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.
(3) The “relevant provisions” are—
(a) section 6 (disability);
(b) other provisions of this Schedule;
(c) regulations under this Schedule (whenever made). ” .
Kemi Badenoch
Secretary of State for Business and Trade and Minister for Women and Equalities
Department for Business and Trade
19th December 2023
“Relevant national authority” is defined in section 21(1) of the Retained EU Law (Revocation and Reform) Act 2023.
2006 c. 3 . Section 24A was inserted by paragraph 68 of Schedule 26 to the Equality Act 2010.
The Commission is defined by section 212(1) of the Equality Act 2010 as the Commission for Equality and Human Rights which was established under Part 1 of the Equality Act 2006.