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Part 10 15Contracts, etc.

Contracts and other agreements

136 Unenforceable terms

(1) A term of a contract is unenforceable against a person in so far as it constitutes,
promotes or provides for treatment of that or another person that is of a
20description prohibited by this Act.

(2) A relevant non-contractual term is unenforceable against a person in so far as
it constitutes, promotes or provides for treatment of that or another person that
is of a description prohibited by this Act, in so far as this Act relates to
disability.

(3) 25A relevant non-contractual term is a term which—

(a) is a term of an agreement that is not a contract, and

(b) relates to the provision of an employment service within section
53(2)(a) to (e) or to the provision under a group insurance arrangement
of facilities by way of insurance.

(4) 30A reference in subsection (1) or (2) to treatment of a description prohibited by
this Act does not include—

(a) a reference to the inclusion of a term in a contract referred to in section
65(2)(a) or 71(2), or

(b) a reference to the failure to include a term in a contract as referred to in
35section 65(2)(b).

(5) Subsection (4) does not affect the application of section 142(2) to this section.

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137 Removal or modification of unenforceable terms

(1) A county court or the sheriff may, on an application by a person who has an
interest in a contract, or other agreement, which includes a term that is
unenforceable as a result of section 136, make an order for the term to be
5removed or modified.

(2) An order under this section must not be made unless every person who would
be affected by it—

(a) has been given notice of the application (except where notice is
dispensed with in accordance with rules of court), and

(b) 10has been afforded an opportunity to make representations to the
county court or sheriff.

(3) An order under this section may include provision in respect of a period before
the making of the order.

138 Contracting out

(1) 15A term of a contract is unenforceable by a person in whose favour it would
operate in so far as it purports to exclude or limit a provision of this Act.

(2) A relevant non-contractual term (as defined by section 136) is unenforceable by
a person in whose favour it would operate in so far as it purports to exclude or
limit a provision of this Act, in so far as the provision relates to disability.

(3) 20This section does not apply to a contract which settles a claim within section
108.

(4) This section does not apply to a contract which settles a complaint within
section 114 if the contract—

(a) is made with the assistance of a conciliation officer, or

(b) 25is a qualifying compromise contract.

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(5) A contract within subsection (4) includes a contract which settles a complaint
relating to a breach of an equality clause or rule or of a non-discrimination rule.

(6) A contract within subsection (4) includes an agreement by the parties to a
dispute to submit the dispute to arbitration if—

(a) 5the dispute is covered by a scheme having effect by virtue of an order
under section 212A of the Trade Union and Labour Relations
(Consolidation) Act 1992, and

(b) the agreement is to submit the dispute to arbitration in accordance with
the scheme.

10Collective agreements and rules of undertakings

139 Void and unenforceable terms

(1) A term of a collective agreement is void in so far as it constitutes, promotes or
provides for treatment of a description prohibited by this Act.

(2) A rule of an undertaking is unenforceable against a person in so far as it
15constitutes, promotes or provides for treatment of the person that is of a
description prohibited by this Act.

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140 Declaration in respect of void term, etc.

(1) A qualifying person (P) may make a complaint to an employment tribunal that
a term is void, or a rule is unenforceable, as a result of section 139.

(2) But subsection (1) applies only if—

(a) 5the term or rule may in the future have effect in relation to P, and

(b) where the complaint alleges that the term or rule provides for treatment
of a description prohibited by this Act, P may in the future be subjected
to treatment that would (if P were subjected to it in present
circumstances) be of that description.

(3) 10If the tribunal finds that the complaint is well-founded, it must make an order
declaring that the term is void or the rule is unenforceable.

(4) An order under this section may include provision in respect of a period before
the making of the order.

(5) In the case of a complaint about a term of a collective agreement, where the
15term is one made by or on behalf of a person of a description specified in the
first column of the table, a qualifying person is a person of a description
specified in the second column.

Description of person who
made collective agreement
Qualifying person
Employer 20A person who is, or is seeking to be,
an employee of that employer
Organisation of employers A person who is, or is seeking to be,
an employee of an employer who is a
member of that organisation
Association of organisations
of employers
25A person who is, or is seeking to be,
an employee of an employer who is a
member of an organisation in that
association

(6) In the case of a complaint about a rule of an undertaking, where the rule is one
30made by or on behalf of a person of a description specified in the first column
of the table, a qualifying person is a person of a description specified in the
second column.

Description of person who
made rule of undertaking
Qualifying person
Employer 35A person who is, or is seeking to be,
an employee of that employer
Trade organisation or
qualifications body
A person who is, or is seeking to be, a
member of the organisation or body
A person on whom the body has
40conferred a relevant qualification
A person seeking conferment by the
body of a relevant qualification

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Supplementary

141 Meaning of “qualifying compromise contract”

(1) This section applies for the purposes of this Part.

(2) A qualifying compromise contract is a contract in relation to which each of the
5conditions in subsection (3) is met.

(3) Those conditions are that—

(a) the contract is in writing;

(b) the complainant has, before entering into the contract, received advice
from an independent adviser about its terms and effect (including, in
10particular, its effect on the complainant’s ability to pursue the
complaint before an employment tribunal);

(c) on the date of the giving of the advice, there is in force a contract of
insurance, or an indemnity provided for members of a profession or
professional body, covering the risk of a claim by the complainant in
15respect of loss arising from the advice;

(d) the contract identifies the adviser;

(e) the contract states that the conditions in paragraphs (b) and (c) are met.

(4) Each of the following is an independent adviser—

(a) a qualified lawyer;

(b) 20an officer, official, employee or member of an independent trade union
certified in writing by the trade union as competent to give advice and
as authorised to do so on its behalf;

(c) a worker at an advice centre (whether as an employee or a volunteer)
certified in writing by the centre as competent to give advice and as
25authorised to do so on its behalf;

(d) a person of such description as may be specified by order.

(5) Despite subsection (4), none of the following is an independent adviser in
relation to a qualifying compromise contract—

(a) a person who is a party to the contract or the complaint;

(b) 30a person who is connected to a person within paragraph (a);

(c) a person who is employed by a person within paragraph (a) or (b);

(d) a person who is acting for a person within paragraph (a) or (b) in
relation to the contract or the complaint;

(e) a person within subsection (4)(b) or (c), if the trade union or advice
35centre is a person within paragraph (a) or (b);

(f) a person within subsection (4)(c) to whom the complainant makes a
payment for the advice.

(6) A “qualified lawyer”, for the purposes of subsection (4)(a), is—

(a) in relation to England and Wales, a person who, for the purposes of the
40Legal Services Act 2007, is an authorised person in relation to an

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activity which constitutes the exercise of a right of audience or the
conduct of litigation;

(b) in relation to Scotland, an advocate (whether in practice as such or
employed to give legal advice) or a solicitor who holds a practising
5certificate.

(7) “Independent trade union” has the meaning given in section 5 of the Trade
Union and Labour Relations (Consolidation) Act 1992.

(8) Two persons are connected for the purposes of subsection (5) if—

(a) one is a company of which the other (directly or indirectly) has control,
10or

(b) both are companies of which a third person (directly or indirectly) has
control.

(9) Two persons are also connected for the purposes of subsection (5) in so far as a
connection between them gives rise to a conflict of interest in relation to the
15contract or the complaint.

(10) In relation to a qualifying compromise contract—

(a) a reference to a complaint is a reference to the complaint settled by the
contract;

(b) a reference to a complainant is a reference to the person whose
20complaint is settled by the contract.

142 Interpretation

(1) This section applies for the purposes of this Part.

(2) A reference to treatment of a description prohibited by this Act does not
include treatment in so far as it is treatment that would contravene—

(a) 25Part 1 (public sector duty regarding socio-economic inequalities), or

(b) Chapter 1 of Part 11 (public sector equality duty).

(3) “Group insurance arrangement” means an arrangement between an employer
and another person for the provision by that other person of facilities by way
of insurance to the employer’s employees (or a class of those employees).

(4) 30“Collective agreement” has the meaning given in section 178 of the Trade
Union and Labour Relations (Consolidation) Act 1992.

(5) A rule of an undertaking is a rule within subsection (6) or (7).

(6) A rule within this subsection is a rule made by a trade organisation or a
qualifications body for application to—

(a) 35its members or prospective members,

(b) persons on whom it has conferred a relevant qualification, or

(c) persons seeking conferment by it of a relevant qualification.

(7) A rule within this subsection is a rule made by an employer for application to—

(a) employees,

(b) 40persons who apply for employment, or

(c) persons the employer considers for employment.

(8) “Trade organisation”, “qualifications body” and “relevant qualification” each
have the meaning given in Part 5 (work).

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