One of the more overlooked areas of the Equality Act 2010 is the provisions of s.17(4) which relates to non-work discrimination cases. The most obvious application of this section is in the provision of goods and services.
I am writing this post for two reasons. The first is to highlight the existence of s.17. I suspect that many discrimination lawyers have never considered it and that it is not appreciated within the wider public the extent to which unfavourable treatment due to breast-feeding is prohibited.
The second is an issue of statutory construction that leaves some points unanswered.
s.17 Equality Act 2010 states:
17Pregnancy and maternity discrimination: non-work cases
(1)This section has effect for the purposes of the application to the protected characteristic of pregnancy and maternity of—
(a)Part 3 (services and public functions);
(b)Part 4 (premises);
(c)Part 6 (education);
(d)Part 7 (associations).
(2)A person (A) discriminates against a woman if A treats her unfavourably because of a pregnancy of hers.
(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.
(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.
(5)For the purposes of this section, the day on which a woman gives birth is the day on which—
(a)she gives birth to a living child, or
(b)she gives birth to a dead child (more than 24 weeks of the pregnancy having passed).
(6)Section 13, so far as relating to sex discrimination, does not apply to anything done in relation to a woman in so far as—
(a)it is for the reason mentioned in subsection (2), or
(b)it is in the period, and for the reason, mentioned in subsection (3).
It is noteworthy that s.17(4) does not require less favourable treatment, rather it requires unfavourable treatment. Therefore, no comparator is required.
s.17(4) refers back to s.17(3) which identifies that to fall within this section, the child must be no more than 26 weeks old. So where does this leave cases which are more than 26 weeks after birth?
The next logical step is to consider direct discrimination under s.13 Equality Act 2010. Of course, direct discrimination requires ‘less favourable treatment’ and therefore a comparator, though breast-feeding is gender specific and I don’t see how much could turn on this point. However, it is not satisfactory to have to rely upon the principle of direct discrimination when it is the intention of parliament that the issue of breast-feeding be expressly referred to in a specific statutory provision.
In addition, this does leave unanswered the point as to why s.17(4) expressly limits itself to only 26 weeks. If unfavourable treatment relating to breastfeeding is to be protected, what is the legislative aim behind limiting it on the basis of the age of the child?
My tentative explanation is that the point has not been properly thought through. It was the intention of Parliament to provide a length for the general period of all of the unfavourable treatment that falls under s.17 but the point in so far as it relates to breast-feeding has not been thought through to its logical conclusion. Parliament could have resolved this by including a specific breast-feeding subsection within s.17 and not limiting it to the general period of 26 weeks.