UK: Discrimination: Legislation Changes

The UK government has published draft regulations which aim to preserve discrimination protections which would otherwise have disappeared at the end of this year due to Brexit. This includes:

• The right to claim indirect discrimination by association – this covers a situation where a person does not share a protected characteristic themselves (e.g. a disability) but suffers the same disadvantage as those who do have that characteristic because of an employer’s provision, criterion or practice, due to their association with someone with the protected characteristic (eg an employee caring for a disabled relative)
• Amending guidance on the definition of disability to take into account a person’s ability to participate in working life on an equal basis with other workers
• A ‘single source’ test for establishing an equal pay comparator – this means an equal pay comparator can potentially work for a different business so long as the body responsible for setting terms is the same
• Protections that prevent women from experiencing less favourable treatment at work because they are breastfeeding
• An extension of direct discrimination protection to cover discriminatory statements made about not wanting to recruit people with certain protected characteristics even where there is no active recruitment process ongoing and no identifiable victim.

The regulations will come into effect from 1 January 2024.

New legislation has been passed which will introduce a duty for all employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. The new duty will come into force in October 2024.

If an employer breaches the duty, it could potentially face:

• Enforcement action by the Equality and Human Rights Commission (EHRC), and/or
• An uplift of up to 25% in any compensation awarded if a tribunal finds that an employee has been subjected to sexual harassment and the employer failed to take reasonable steps to prevent that harassment.

The EHRC’s technical guidance on sexual harassment and harassment at work will be updated to reflect the new duty and to set out the steps that employers should take to comply with it.

Key Action Points for Human Resources and In-House Counsel

Employers should review their policies, procedures and training programmes to ensure that they are taking sufficient steps to meet the new duty to prevent sexual harassment.