The amendments are summarised as follows:
Removal of requirement for same employer with equal pay claims
Under the Equality Act, in order to bring an equal pay claim, employees needed to demonstrate that they were paid less than a colleague employed by the same, or an associated employer. This is in contrast to the favoured EU approach which only requires that terms and conditions are derived from a ‘single source’. This EU approach has now been built into the Equality Act, with the effect that an employee may potentially compare pay with employees from different organisations.
In practical terms, however, this is unlikely to lead to any real change as the UK courts and tribunals have been using the ‘single source’ test for some time, due to the requirement to interpret UK law in line with rights provided under EU treaties.
Expansion of definition of disability
The Equality Act defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The concept of normal day-to-day activities has now been expanded to include a person’s ability to ‘participate fully and effectively in working life on an equal basis to other workers’, which essentially widens the definition to cover infrequent work activities, as well as activities common in certain types of employment. For example, work-related activities such as taking career-related examinations and assessments, may now fall under the definition of normal day-to-day activities, and activities such as lifting and moving heavy goods, which is uncommon in most jobs but relevant to some, may also be covered. Again, the practical impact of this change is likely to be limited as the wider definition has already been adopted in the UK in some cases, and this simply restates the position under UK law.
No need to share a protected characteristic when claiming indirect discrimination
In the case of indirect discrimination claims, a claimant was previously required to share the same protected characteristic as the disadvantaged group. This has now changed to fall in line with a European Court of Justice decision which held that such a claim may be brought by a person who does not share the same protected characteristic.
In this case, Roma people had been disadvantaged by electricity meters in their area being fitted at a height that was more difficult for them to access, which had been done to prevent such meters being interfered with. A resident of that area, who was not of Roma ethnic origin, succeeded with an argument that she had been indirectly discriminated against as it was a disadvantage for her as well, despite her not having the protected characteristic.
This change to the Equality Act opens up the possibility for new claims to be raised which could not have succeeded before. For example, only women with childcare responsibilities who were not permitted to work part-time could have succeeded with indirect discrimination claims, whereas now this has changed, and men who are also refused part-time work can potentially make such a claim, as they are suffering the same disadvantage as the disadvantaged group (ie women with childcare responsibilities), without actually falling within it.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
