Equality Act 2010 (Amendment) Regulations 2023

The Government has published draft legislation to amend the Equality Act 2010 with effect from 1st January 2024. The new Equality Act 2010 (Amendment) Regulations 2023 provide for certain EU derived discrimination protections which would otherwise have disappeared at the end of this year due to Brexit.

So what do these amendments include?

• Individuals now possess the right to assert a claim for indirect discrimination by association. This allows a person who does not share the relevant protected characteristic to make a claim if they experience the same disadvantage as those who do have that characteristic due to the employer's provisions, criteria, or practices.
• An amendment to the guidance on the definition of disability, stating that considering an individual's ability to participate fully and effectively in working life on an equal basis with other workers is relevant when examining 'day-to-day activities'.
• A 'single source' test has been introduced for establishing an equal pay comparator. This entails the concept that an equal pay comparator may potentially be employed by a different business, as long as the entity responsible for setting terms remains the same.
• An extension of direct discrimination protection to encompass discriminatory statements made about not wanting to recruit individuals with certain protected characteristics, even in cases where there is no active recruitment process underway and no identifiable victim.
• Confirmation has been provided that employment discrimination on the grounds of breastfeeding is now recognised under the protected characteristic of sex.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

The government has published a draft statutory instrument containing amendments to the law on holiday pay, TUPE and working time. The changes, which are due to come into force on 1 January 2024, include:

• Making it easier to figure out holiday pay by giving the green light to rolled-up holiday pay (12.07% of pay) for those working part of the year or irregular hours. If you use Zero Hour Contracts, get in touch with us here about updating relevant clauses!
• Reiterating various pieces of EU case law that we're keeping in the UK post-Brexit. This allows the carryover of:
• All statutory annual leave to the next year if someone can't take it due to being on family-related leave.
• Up to 18 months' worth of regulation 13 leave (that's 4 weeks per year) for when someone can't take their leave because of sickness.
• Regulation 13 leave can be carried over when the worker hasn't had the chance to take it, or the employer hasn't told them that any unused leave will be lost if not taken.
• Clarification on what constitutes 'normal remuneration' for holiday pay during Regulation 13 leave. This includes commission payments and other forms of earnings, such as regular overtime payments.
• Removal of additional working time record-keeping rules for working hours as per the ECJ judgment in CCOO v Deutsche Bank. This ruling previously required keeping track of working hours and rest for almost everyone, even if they had regular hours! (Did anyone actually do this anyway?!)
• Small businesses, those with fewer than 50 employees, can now conduct direct consultations with their employees during TUPE transfers of any size. Similarly, businesses of any size handling a small transfer (involving fewer than 10 employees) have the option to engage in direct consultation if there are no existing representatives in place.

Feeling a bit lost on what to do next? Need a hand with sprucing up your policies and contracts to align with these changes? Don't hesitate to drop us a line at info@freshseed.co.uk. We're here to not only guide you through these updates but also to ease the burden of your admin tasks. Let's tackle this together!