The Equality Act 2010 - changes in 2024 including Brexit-related codification

This legislative note considers the widespread changes to the Equality Act 2010 which have been made or are set to be made in 2024. These are predominantly but not exclusively as a result of Brexit and the effect of the Retained EU Law (Revocation and Reform) Act 2023 and see indirect effect give way to express statutory provisions. The breadth of the changes span: aspects of the definitions of direct discrimination, indirect discrimination, pregnancy and maternity discrimination and the protected characteristic of disability; the unlawful acts of discrimination (regarding discriminatory public statements) and harassment (introducing positive duty on employers to prevent sexual harassment of employees); changes to the equal pay provisions.

of regulations from 2023, covering occupational pensions and the change in terminology from 'retained EU law' to 'assimilated law' in schedules 3 and 18. 3 More fundamentally, later in the year will see a non-European inspired new provision regarding sexual harassment coming into force.
This legislative comment sets out seven key areas affected by the changes and discusses the underlying reasons for them.Broadly following the order of the Act, it starts with the definition of direct discrimination (regarding pregnancy, maternity and breastfeeding) and goes on to consider the changes to: the definition of 'pregnancy and maternity discrimination: work cases'; the definition of indirect discrimination; the introduction of section 40A positive duty on employers to prevent sexual harassment of employees; the introduction of section 60A regarding discriminatory public statements; changes to the Equal Pay (and pensions) provisions; and the definition of disability in Schedule 1.

Section 13 -direct discrimination
Section 13(1) of the Equality Act defines direct discrimination as less favourable treatment because of a protected characteristic.Subsequent sub-sections extend or limit the definition. 4Formerly, subsection 6 provided that if the protected characteristic is sex-(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.
Subsection 7 then went on to say that subsection (6)(a) does not apply for the purposes of Part 5 (work).The amended section 13 sees 'maternity' added alongside pregnancy or childbirth in section 13(6)(b) and sees the deletion of section 13 (7) in the first amendment to the definition of direct discrimination since the Act's enactment.Given the difference in wording between section 18 (which refers to maternity) with the former section 13(6)(b) reference to pregnancy and childbirth, the change removes any doubt about the definition and allows the section to continue to be interpreted as at present, that is in line the Equal Treatment Directive, which also refers to maternity. 5erhaps more usefully, the excising of section 13 (7) does clarify what has previously been described, along with section 13(6)(a), as a set of provisions that are 'at best ambiguous' and as a purportedly clarifying provision which the tribunal 'can see little or no reason to have…or to negate or disapply it in the case of a claim under part 5'. 6The Explanatory Memorandum To The Equality Act 2010 (Amendment) Regulations 2023 notes that in Otero Ramos v Servicio Galego de Saúde and another 7 the ECJ determined that sex discrimination included less favourable treatment because of breastfeeding and thus the interpretative effects of EU law could allow claims to be brought.However, reliance on the interpretive effects of EU law was not the avenue the Employment Tribunal initially went down in Ms T Mellor v The MFG Academies Trust 8 in 2022.Using national law, the tribunal distinguished between a breastfeeding woman (as in Otero Ramos), including a woman who does, has or proposes to breastfeed, with 'the physical act of breastfeeding a child at any particular moment' as section 13(6)(b) specifically says 'is' breastfeeding. 9In the alternative, if they were wrong on that point, they could interpret the provisions without judicially rewriting the Act by saying that section 13(6)(b) is no more than a clarificatory provision, and that the disapplication by section 13 (7) merely removes a clarification and that they would thus be entitled to interpret sex discrimination as including breast-feeding. 10While such a route is thus a possibility without the amendment, the omission does have the benefit of preventing such strained interpretations.

Section 18 -pregnancy and maternity discrimination: work cases
This section of the Act is the subject of two amendments.The section provides a specific definition of discrimination in the workplace because of either a woman's pregnancy or pregnancy-related illness within a protected period 11 or the taking of maternity leave, 12 and both aspects have been amended.The history and interpretation of the protection is very much a matter of European law and some contextual background may help explain the amendments introduced this year.
Unlike under the wording of direct discrimination (which is disapplied where section 18 applies), no comparator is required (as the section refers to unfavourable rather than less favourable treatment).The predecessor legislation, the Sex Discrimination Act 1975, had, following a reference to the ECJ, been interpreted in the case of Webb v Emo Air Cargo (U.K.) Ltd (No. 2) under the EC (as it then was) doctrine of indirect effect. 13The interpretation held that while a comparison is required for sex discrimination one would not compare a man in similar circumstances, as men could not be pregnant, and as men could not be pregnant the discrimination must be because of sex.A decade later the Sex Discrimination Act 1975 was amended in light of the Equal Treatment Amendment Directive (ETAD), 14 introducing an explicit reference into the Act -it having been noted that while the "UK courts currently interpret the SDA's test of direct discrimination to include less favourable treatment on grounds of pregnancy or maternity leave" as there was "nothing on the face of the SDA making it clear that this is the case" a section would be inserted "to ensure clarity of the law which implements this requirement of the ETAD". 15This provision retained the less favourable treatment formulation (e.g."person discriminates against a woman if (a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant) which subsequently led to a judicial review 16 and subsequent amendment, 17 deleting the words after favourably but not following the EU's use of unfavourably until the passage of the Equality Act 2010. 18he unifying and simplifying Equality Act 2010 generally replicated the earlier provisions regarding pregnancy and maternity leave but went on to explicitly include a provision under subsection (5) that "if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that Hand period (even if the implementation is not until after the end of that period)".This subsection has been deleted by the Equality Act 2010 (Amendment) Regulations 2023 in favour of a broader approach incorporated in the previous sub-section, which now reads: A person (A) discriminates against a woman if, in or after the protected period in relation to a pregnancy of hers, A treats her unfavourably (a) because of the pregnancy, or (b) because of illness suffered by her in that protected period as a result of the pregnancy. 19e stated reason for this is that section 18(5) did not extend to protection against "unfavourable treatment which occurs after the protected period but is because of the pregnancy and relates to the protected period" despite the 1996 ECJ case of Brown v Rentokil (C-384/96) having "established that pregnancy and maternity protection extends to unfavourable treatment which occurs after the end of the protected period but which is because of the pregnancy and or pregnancy-related illness during the protected period." 20hile the explicit extension is welcome, it should be noted that in Brown there was a limitation in that: where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness [where] the sole question is whether a female worker's absences, following maternity leave, caused by her incapacity for work brought on by such disorders, are treated in the same way as a male worker's absences, of the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex. 21ction 18 is further amended with regard to the provisions concerning maternity leave.Under section 18(3) and (4), pregnancy/maternity discrimination includes where a person treats a woman unfavourably either because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave respectively.This has been extended to cover what is termed 'equivalent compulsory maternity leave' in the case of subsection (3) and 'a right to equivalent maternity leave' in the case of the subsection (4).Equivalent compulsory maternity leave is then defined in new subsection 18(6A) as being leave, provided under a statutory or contractual scheme, which is of a substantially similar nature (regardless of its length) to compulsory maternity leave and equivalent maternity leave is defined in similar terms but with regard to ordinary or additional maternity leave or both.Under the old and new extended express provisions, both the right to and operation of such leave determine the length of the protected period.This begins when the pregnancy begins, and ends, if she has the right to ordinary and additional maternity leave (under section 18(6)(a)), and now if she has a right to equivalent maternity leave (under new section 18(6)(aa)), at the end of the additional maternity leave/equivalent maternity leave period or (if earlier) when she returns to work after the pregnancy, or if she has neither of the rights described in paragraphs (a) and (aa) at the expiry of 2 weeks following the end of the pregnancy (under section 18(6)(b)).
The impetus for this change is stated to be that the Court of Appeal in Commissioner of the City of London Police v Geldart 22 'determined that a woman who did not have [maternity] rights under the Employment Rights Act 1996, but had an equivalent right to maternity leave under an occupational scheme, did not need a male comparator … (applying the principle established [in] Webb)', and thus the interpretative effects of retained EU law allowed such claims. 23This seems a sweeping interpretation of Underhill LJ's judgment in the case.Indeed, rather than applying Webb (No 2) or the ECJ hearing, he noted that 'Webb v EMO, together with Dekker and Hertz, which it followed, are cases of a different kind.They were not concerned with pay but with dismissal.That is a fundamental distinction.' 24He followed that by saying: If it were correct to characterise the reason for the non-payment of London Allowance as "maternity" or "maternity absence" then it would indeed appear to follow from Webb v EMO , as the ET held on issue (3), that it was unnecessary to identify a male comparator in the same circumstances.If, however, as I would hold, the reason is simply "absence", then Webb v EMO does not apply and the ET's finding on issue (3) was wrong. 25opting the 'reason why' or motivation approach in this case dispensed with the twostep consideration of a comparator and treatment rather than applying Webb.

Section 19 -indirect discrimination
While the definition of indirect discrimination has taken a number of formulations over the years since being introduced in 1975, the definition had been stable since the introduction of the Equality Act 2010 until the case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia 26 introduced the concept of associative indirect discrimination.
The standard definition of indirect discrimination, under section 19(1) and (2), requires a provision, criterion or practice which is applied to persons with whom B does not share the characteristic (section 19(2)(a)), which creates a particular disadvantage to persons with whom B shares a particular protected characteristic (section 19(2)(b)), which put B at that disadvantage (section 19(2)(c)) and which the defendant cannot show the imposition of it to be a proportionate means of achieving a legitimate aim (section 19(2)(d)).CHEZ is authority for extending protection to those who do not share the characteristic but do have a particular association with those who do, which creates some problems with the claimant specific wording in section 19.
There has been little appellate consideration of associative indirect discriminationwhile Westlaw cites 14 UK cases as citing CHEZ, the mention is in most cases fleeting or related to a different aspect. 27There has, however, been consideration at Employment Tribunal level, where a distinction has been drawn between collateral cases (where the claimant is associated with the group and both the group and claimant are affected) and friends and family cases (where the claimant is associated with the characteristic through such people but the possessor of the characteristic is not affected). 28The version adopted by the Regulations is the collateral rather than wider association approach.Connolly (2021) has suggested that the ECJ would have been better to have approached the matter of collateral effect through considering standing rather than through substantive law, but in order to give effect to the judgment some legislative amendment was necessary.
The way that amendment has been done seems to undermine the objectives behind the Equality Act of simplifying the legislation.Associative discrimination has long been part of direct discrimination but there is no discrete provision or sub-provision referring to it (it being inherent in the wording of direct discrimination and exampled in the Explanatory Notes to section 13 direct discrimination).However, we now have the situation where direct discrimination is reliant on case law and explanatory notes whereas indirect has its own provision covering it (in so far as it refers to collateral harm).Furthermore, the provision is in its own section -the new section 19A -rather than within section 19, duplicating much of section 19 though with different paragraphing.Thus section 19(1) and (2)(a) are replicated (though not in terms) by section 19A(1)(a) and (b)(i) and (ii) with some of the differences being superficial while others avoid reference to having the protected characteristic (which in some paragraphs is unnecessarily included in section 19); section 19(2)(b) has its near parallel in section 19A(1)(d) but again without reference to the protected characteristic; section 19(2)(c) by section 19A(1)(e); and section 19(2)(d) by section 19A(1)(f), here with just superficial or merely presentational changes in wording.The provision defining the relevant protected characteristics (section 19(3) and section 19A(2) are identical save for the seemingly redundant, but clearly different, inclusion of 'for the purposes of this section' before the identical listing.It may have proved complicated to rework and add subsections to section 19 to achieve the same end, but the similar but different section with a similar but different section number seems prone to confuse at least the lay reader.Furthermore, the effect of having a distinct section is a series of a dozen consequential amendments which add 'section 19A' to later mentions of section 19. 29ction 40A -positive duty on employers to prevent sexual harassment of employees This new duty was originally part of wider reform which elicited much debate. 30A private members bill had proposed reintroducing a modified version of employer's liability for the acts of harassment by third parties towards their employees (where all reasonable steps had not been taken).Such a provision had originally been part of the Equality Act 2010 31 before being repealed by the Coalition Government as it was considered unnecessary. 32owever, using an interpretative approach was all but closed off by the Court of Appeal in Unite the Union v Nailard, 33 and parliamentary 34 and government 35 reviews suggested it should be reinstated together with the introduction of a duty to protect employees from sexual harassment. 36The government adopted the private members bill and introduced a provision protecting free speech across the third-party harassment 37 and secondary liability 38 provisions so that unintentional and untargeted comments would not be caught be the legislation.The Bill then ran into trouble in the House of Lords.The upshot being that with "a great deal of pragmatism and compromise on all sides" to quote the Liberal Democrat peer steering the bill through, 39 the third-party liability provisions (including the strengthening for freedom of speech regarding harassment by employees) were jettisoned and the Worker Protection (Amendment of Equality Act 2010) Act 2023 focussed solely on creating a duty on employers to prevent sexual harassment.
The new Section 40A, which is due to come into force on 26 October 2024, 40 provides that an employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment (under subsection (1)), with sexual harassment defined by subsection (2) in the same way as in section 26(2) (unwanted conduct of a sexual nature which purposefully or in effect violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment).Subsection (3) goes on to provide that only the Commission for Equality and Human Rights can bring enforcement proceedings.However, the remedies provision is altered so that where a section 40 claim succeeds based on section 26(2) (unwanted conduct of a sexual nature), 41 the tribunal must consider whether there has been a breach of new subsection 40A, 42 and may increase the compensation awarded 43 to reflect the contravention by no more than 25%. 44While the Commission-enforced duty on employers as worded is sufficiently wide to include harassment by third parties, as it refers simply to taking reasonable steps to prevent harassment as defined by section 26 with no reference to the specific unlawful act provisions such as section 40, the uplift to compensation is limited solely, post-Unite the Union v Nailard, to harassment by employers and colleagues.

Section 60A -discriminatory public statements
As with section 40A, section 60A introduces a statutory provision that is enforceable by the Commission for Equality and Human Rights; unlike section 40A, but like most of the other changes discussed here, it is designed to put on a statutory footing what has previously been achieved through interpretation.The Act outlaws discrimination in employment through section 39 and in other employment-related spheres (such as those concerning partners, office-holders, and barristers/advocates) in subsequent sections.It does this by prohibiting discrimination in employment in the second subsection and in the stages immediately prior to appointment (e.g. in case of employees in the arrangements made for deciding to whom to offer employment; in the terms on which employment is offered; and in not offering employment).It therefore requires a pre-existing relationship or, arguably, an active recruitment process with regards to the arrangements made.In NH v Associazione Avvocatura per i diritti LGBTI-Rete Lenford (Case C-507/18), 45 the ECJ held that as the directive defined direct discrimination with regard to conditions for access to employment as occurring when someone "is, has been or would be treated" less favourably, 46 it could encompass statements made "even though no recruitment procedure had been opened, nor was planned, provided that the link between those statements and the conditions for access to employment or occupation within that undertaking is not hypothetical". 47ection 60A takes the form of a lengthy provision -running to 10 subsectionsprohibiting the making of discriminatory statements in connection with a relevant decision that the appointer makes or might make (subsection (1), across the wider-employment field (subsection (2)), if it is to the public (or section thereof) and would amount to direct discrimination (subsection (3)), and is sufficiently connected to a potential relevant decision taking account of factors such as the status of the person making the statement and the nature and context of it (subsections ( 5) and ( 6)).It extends to statements made by people capable of exercising decisive influence on the making of such decisions (subsection (4)).But, as noted, any contravention is enforceable only by the Commission (subsection (8)).This differs both from the NH case itself, where the LGBTI advocates association took action (although EU law did not require them to have standing, Italian law allowed it), and from the approach taken when defining indirect discrimination in the Equality Act 2010.The definition refers to provisions, criteria or practices which "applies, or would apply" and which "puts, or would put" people at a disadvantage -a change from the individual-focussed formulation used in for example the Sex Discrimination Act 1975 which may have prevented claims from those deterred from applying.In making the Commission the gatekeeper of such claims, it places an extra control on litigation given the wide scope of potential claimants but also ensures that the Commission's enforcement role is not curtailed.

Equal Pay -the definition of comparators (Section 79) and pension provisions
The Equality Act 2010 (Amendment) Regulations 2023 inserts two subsections into section 79 and another set of Regulations 48 restates the law with regard to two aspects regarding pensions.
The insertions to section 79 replicate the broader definition previously available through relying on the direct effect of Article 157 of the Treaty on the Functioning of the European Union.Under sections 79(3) and (4) of the Equality Act 2010, and formerly under similar provision in the Equal Pay Act 1970, 49 a comparator for equal pay purposes could be someone who works for the same employer (or an associated employer) at the same establishment or someone who works for the same employer (or an associated employer) at a different establishment but where common terms and conditions of employment apply (either generally or between those two employees).The treaty provision however allows comparison between the people in the same establishment or service and where there is a 'single source' for the terms of employment. 50The article is directly enforceable as originally held in Defrenne v Sabena (c-43/74) 51 and while there has been some debate it has been more recently held that that extends to the single-source concept. 52s national level, as established in North v Dumfries and Galloway Council, 53 a case based on the Equal Pay Act and what was at the time Article 141 of the EC Treaty, courts could conduct a hypothetical exercise, asking whether, assuming that the comparator was employed to do his present job in the claimants' establishment, the current core terms and conditions would apply.The North hypothetical was applied by the Supreme Court in Asda Stores Ltd v Brierley and others. 54These cases were decided based on national law rather than through direct effect of treaty articles 55 or even indirect effect through compliant interpretation. 56However, while noting "it remains to be seen whether such cases arise in practice", Underhill LJ recognised that "it is possible to conceive of cases… where the requirements of section 79(4)(c), even as I have construed it, are not satisfied on the facts of the particular case".Accordingly, the new section 79(4A) and (4B) which extends the definition of a comparator to include where 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" and where "the terms on which A and B are employed are governed by the same collective agreement" may not prove to be necessary but provide a replacement for the Treaty article route should it be necessary.
The restating of the law with regard to pensions, by the Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023, sees express provisions previously disapplied by the principle of direct effect of a directive and and 'on the basis of the principles articulated in Kücükdeveci and Chester' 57 regarding fundamental principles of EU law replaced by compliant provisions.
As noted above, generally an actual comparator is required by the Equality Act for equal pay cases.However, the decision in Allonby v Accrington and Rossendale College that the Treaty Article regarding equal pay (Article 141(1) EC) must be interpreted "where State legislation is at issue" as not requiring comparison with an identified "worker of the other sex who is or has been employed by the same employer and who has received higher pay for equal work or work of equal value" meant that where discrimination arose as a result of Guaranteed Minimum Pensions legislation, no comparator is required. 58Section 64(1) which states that 'Sections 66 to 70 apply where-(a) a person (A) is employed on work that is equal to the work that a comparator of the opposite sex (B) does' (with a holding the same for persons holding a personal or public office) and subsection (2) (which provided for the comparison to not necessarily be contemporaneously) is now joined by subsection (3) which holds that "Sections 66 to 68 and 70 apply where a person (A) is or has been in pensionable service under an occupational pension scheme (regardless of whether those sections also apply in A's case by virtue of subsection (1))."Further amendments provide for the lack of comparison regarding guaranteed minimum pension provisions in sections 66 (sex equality clause) and 67 (sex equality rule). 59he decision in Walker v Innospec Ltd [2017] UKSC 47 similarly led to disapplication of a provision -in this case, paragraph 18 of Schedule 9 to the Equality Act 2010 where it previously allowed denying same sex spouses access to a spouse's pension calculated on service before 2005 (when the Civil Partnership Act 2004 came into force).This provision was a carry-over from the Employment Equality (Sexual Orientation) Regulations 2003, 60 and it was at the time said to be outwith EU competence as it related to the status of marriage. 61The insertion of sub-paragraph (3) to paragraph 18 now explicitly provides that the exception in "sub-paragraph (1) does not apply in relation to access to a benefit payable under an occupational pension scheme to the surviving spouse or surviving civil partner of a deceased member or deceased pension credit member of the scheme".

The definition of disability (schedule 1)
While the protected characteristic is defined in section 6 of the Equality Act 2010, the definition is extended or limited through schedule 1 and through regulations.Section 6, as with the predecessor Disability Discrimination Act 1995, broadly defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. 62British disability discrimination law predated European protection leading to many amendments to the Disability Discrimination Act 1995 when the Framework Directive 63 was introduced in 2000 which were then carried through to the simpler Equality Act 2010.However, the definition of discrimination was not one of them as the directive did not define disability.In 2013, the European Court of Justice held that disability must be interpreted as a limitation (resulting in particular from physical, mental or psychological impairments), which is long-term, and which may 'hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers'. 64While the Equality Act 2010 definition could be, and has been, interpreted to comply a new paragraph within Schedule 1, paragraph 5A, holds that, with regard to provisions related to the area of work, "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".This should ensure that an interpretation of day-to-day which now includes infrequent events and job-specific events is maintained. 65

Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/ or publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD
) limits protection for age discrimination by uniquely allowing justification of direct discrimination, sub-s (3) allows more favourable treatment of disabled persons, sub-s (4) limits the application of associative discrimination by removing marriage and civil partnership requirement is not met.";NorthvDumfriesandGalloway Council [2013] UKSC 45,[41]: "If section 1(6)were to operate as a barrier to a comparison which was required by EU law in order to give effect to the fundamental principle of equal treatment, it would be our duty to disapply it.However, for the reasons given earlier, it sets a low threshold which does not operate as a barrier to the comparison proposed in this case".56.Asda Stores Ltd v Brierley and others [2019] EWCA Civ 44, [80]: "I reach that conclusion on the basis of ordinary domestic construction principles.But I would if necessary rely on a Marleasing approach."and [107]: "I reach that conclusion, as the Employment Judge did, without seeking any support from EU law".57.Walker v Innospec Ltd & Ors [2017] UKSC 47, [74]; referring to Kücükdeveci v Swedex GmbH and Co KG (Case C-555/07) [2010] All ER (EC) 867 and R (Chester) v Secretary of State for Justice [2013] UKSC 63. 58.Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328 (ECJ), [84]; while the Government stated they intended 'to bring forward amending legislation when Parliamentary time allows' in 2010 (HC Deb 28 January 2010, vol 504, col 66WS), time was not found.59.Through introducing sections 65(5) and (6) and 67(2A) and (2B) and limiting the application of the earlier subparagraphs to where section 65(1) applies.60.The Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661, r.25.61.See e.g. the Explanatory Notes to the Regulation (Regulation 25 -Exception for benefits dependent on marital status) cited in House of Commons Library Research Paper 03/54, Employment Equality Regulations: Religion and Sexual Orientation, p.33. 62.With some conditions being excepted by regulations or included through express provisions 63.Council Directive 2000/78/EC establishing a general framework for equal treatment in occupation and employment.64.HK Danmark v Dansk almennyttigt BoligselskabSame v Dansk Arbejdsgiverforening (C-335/ 11) [2013] ICR 851, ECJ, [47] (see also [41]), building on Chacon Navas v Eurest Colectividades SA (C-13/05) [2007] ICR 1. 65.While some cases such as Chief Constable of Dumfries & Galloway v Adams [2009] ICR 1034 (with regard to night shifts) predated the the use of indirect effect stemming from HK Danmark (above), others made use of the decision in e.g.holding that a distribution centre employee's task of lifting cases weighing up to 25 kg was a normal day-to-day activity (Banaszczyk v Booker Ltd [2016] IRLR 273), contrary to the first example in the para 40 of the Explanatory Notes to the Equality Act 2010.