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Public Bill Committee: 30 June 2009                     

336

 

Equality Bill, continued

 
 

Public authorities

 

Lynne Featherstone

 

Dr Evan Harris

 

NC14

 

To move the following Clause:—

 

‘(1)    

It is unlawful for a public authority to act in a way which is incompatible with the

 

right to equality.

 

(2)    

Subsection (1) does not apply to an act if—

 

(a)    

as the result of one or more provisions of primary legislation, the

 

authority could not have acted differently; or

 

(b)    

in the case of one or more provisions of, or made under, primary

 

legislation which cannot be read or given effect in a way which is

 

compatible with the right to equality, the authority was acting so as to

 

give effect to or enforce those provisions.

 

(3)    

In this section “public authority” includes—

 

(a)    

a court or tribunal, and

 

(b)    

any person certain of whose functions are functions of a public nature,

 

    

but does not include either House of Parliament or a person exercising functions

 

in connection with proceedings in Parliament.

 

(4)    

In this Act the factors which may be taken into account in determining whether a

 

function is a public function include—

 

(a)    

the extent to which the state has assumed responsibility for the function

 

in question;

 

(b)    

the role and responsibility of the state in relation to the subject matter in

 

question;

 

(c)    

the nature and extent of the public interest in the function in question;

 

(d)    

the nature and extent of any statutory power or duty in relation to the

 

function in question;

 

(e)    

the extent to which the state, directly or indirectly, regulates, supervises

 

and inspects the performance of the function in question;

 

(f)    

the extent to which the state make payment for the function in question;

 

(g)    

whether the function involves or may involve the use of statutory

 

coercive powers;

 

(h)    

the extent of the risk that improper performance of the function might

 

violate the right to equality.

 

(5)    

In subsection (3) “Parliament” does not include the House of Lords in its judicial

 

capacity.

 

(6)    

In relation to a particular act, a person is not a public authority by virtue only of

 

subsection (3)(b) if the nature of the act is private.

 

(7)    

“An act” includes a failure to act but does not include a failure to—

 

(a)    

introduce in, or lay before, Parliament a proposal for legislation; or

 

(b)    

make any primary legislation or remedial order.’.

 



 
 

Public Bill Committee: 30 June 2009                     

337

 

Equality Bill, continued

 
 

Statements of compatibility

 

Lynne Featherstone

 

Dr Evan Harris

 

NC15

 

To move the following Clause:—

 

‘(1)    

A Minister of the Crown in charge of a Bill in either House of Parliament must,

 

before the second reading of the Bill—

 

(a)    

make a written statement to the effect that in his or her view the

 

provisions of the Bill are compatible with the right to equality (“a

 

statement of compatibility”); or

 

(b)    

make a statement to the effect that although he or she is unable to make

 

a statement of compatibility the Government nevertheless wishes the

 

House to proceed with the Bill.

 

(2)    

The statement must be published.’.

 


 

Proceedings

 

Lynne Featherstone

 

Dr Evan Harris

 

NC16

 

To move the following Clause:—

 

‘Sections 7, 8 and 9 of the Human Rights Act 1998 shall have effect in relation to

 

acts made unlawful by section [Public authorities] (1) of this Act as if the act

 

complained of were made unlawful by section 6(1) of the Human Rights Act

 

1998.’.

 


 

Power to take remedial action

 

Lynne Featherstone

 

Dr Evan Harris

 

NC17

 

To move the following Clause:—

 

‘Sections 10 of the Human Rights Act 1998 shall have effect in relation

 

provisions of legislation declared under section [Declaration of incompatibility]

 

of this Act to be incompatible with the right to equality as if the provisions had

 

been declared incompatible with a Convention right under section 4 of the Human

 

Rights Act 1998.’.

 

Member’s explanatory statement

 

Clauses to establish an equality guarantee.

 



 
 

Public Bill Committee: 30 June 2009                     

338

 

Equality Bill, continued

 
 

Assistance with human rights

 

Mr Tim Boswell

 

NC18

 

To move the following Clause:—

 

‘The Equality and Human Rights Commission may assist any person (or group of

 

persons with similar characteristics), whether or not they have a relevant

 

protected characteristic, if it deems it appropriate and necessary in order to protect

 

the human rights of that person or persons.’.

 


 

Volunteers

 

Mr Tim Boswell

 

NC19

 

To move the following Clause:—

 

‘For the avoidance of doubt, with the exclusion of matters related to

 

remuneration, all rights of employees under this Act are deemed to extend to

 

persons who work as volunteers without remuneration; and all duties of

 

employees and their employers to avoid discrimination are deemed to extend to

 

volunteers working without remuneration.’.

 


 

Prohibited pre-employment inquiries

 

Mr David Drew

 

NC20

 

To move the following Clause:—

 

‘(1)    

A person (A) subjects a disabled job applicant (B) to prohibited employment

 

enquiries where A makes inquiries of B as to whether B is a disabled person or as

 

to the nature or severity of such disability.

 

(2)    

Inquiries of a disabled person as to the existence, nature or severity of their

 

disability will not constitute prohibited pre-employment inquiries for the

 

purposes of this Act where—

 

(a)    

the inquiry is for the purpose of determining whether an applicant

 

requires reasonable adjustments for the interview process and is stated as

 

being such an inquiry;

 

(b)    

the inquiry is made at the application stage for the purposes of monitoring

 

disabled applicants, where such inquiry is made in writing, is kept

 

separately from any application form, is anonymised, and is stated as

 

being such an inquiry;

 

(c)    

for the purposes of positive action in recruitment, such as offering the

 

guaranteed interview scheme, and is stated as being such an inquiry.

 

(3)    

Any invitation to request reasonable adjustments or disclose a disability under

 

subsection (2)(a), (b) and (c) must specify the use that will be made of that


 
 

Public Bill Committee: 30 June 2009                     

339

 

Equality Bill, continued

 
 

information and must state that there is no requirement to provide that

 

information.

 

(4)    

Information provided must only be used for the stated purpose.

 

(5)    

Inquiries of a disabled person as to the existence, nature or severity of their

 

disability will not constitute prohibited pre-employment inquiries for the

 

purposes of this Act where the inquiry is necessary for the purposes of

 

determining whether an applicant can perform a specific employment-related

 

function, either with or without adjustments and is stated as being such an

 

inquiry.’.

 


 

Employees and applicants: prohibited pre-employment inquiries

 

Mr David Drew

 

NC21

 

To move the following Clause:—

 

‘An employer (A) must not subject a disabled job applicant (B) to prohibited

 

employment inquiries.’.

 


 

Purposes of the Act

 

Mr Tim Boswell

 

NC22

 

To move the following Clause:—

 

‘(1)    

The purposes of this Act are to promote equality by—

 

(a)    

preventing discrimination, harassment and victimisation on any of the

 

grounds set out in this Act whether singly or in any combination;

 

(b)    

ensuring that every person has an equal opportunity to participate in

5

society, including by means of different treatment as required or

 

permitted by the Act;

 

(c)    

eliminating and preventing patterns of systemic discrimination and

 

inequality;

 

(d)    

permitting the adoption of measures to alleviate the disadvantage related

10

to any of the grounds singly or in any combination;

 

(e)    

ensuring respect for and protection of the human dignity of every person;

 

(f)    

providing effective remedies for victims of discrimination, harassment

 

and victimisation.

 

(2)    

Any person applying this Act must interpret its provisions to give effect to the

15

purposes stated in subsection (1).’.

 

As an Amendment to Mr Tim Boswell’s proposed New Clause (Purposes of the Act)

 

(NC22):—


 
 

Public Bill Committee: 30 June 2009                     

340

 

Equality Bill, continued

 
 

Dr Evan Harris

 

Lynne Featherstone

 

(a)

 

Line  13,  at end insert—‘;

 

(g)    

fostering good relations between persons who share a relevant protected

 

characteristic and persons who do not share it’.

 


 

Gender pay gap information (No.2)

 

Lynne Featherstone

 

Dr Evan Harris

 

NC23

 

To move the following Clause:—

 

‘(1)    

Subject to the provisions of this section, no less than every three years a

 

designated employer shall publish information relating to the pay of its

 

employees for the purpose of showing whether there are differences in the pay of

 

male and female employees.

 

(2)    

The information relating to pay which a designated employer shall publish

 

includes—

 

(a)    

the average hourly pay of male workers and the average hourly pay of

 

female workers within its employment;

 

(b)    

in respect of each role within the organisation—

 

(i)    

the average pay awarded to workers engaged in the role;

 

(ii)    

the percentage of men and women engaged in that role;

 

(iii)    

the gap, if any, between the average hourly pay of male and

 

female employees in that role; and

 

(iv)    

the average length of service of men and women engaged in that

 

role;

 

(c)    

information identifying—

 

(i)    

any descriptions of activities carried out in the course of

 

employment with the employer by any group of workers who are

 

wholly or mainly men;

 

(ii)    

any descriptions of activities carried out in the course of

 

employment with the employer by any group of workers who are

 

wholly or mainly women;

 

(iii)    

the relative values of the descriptions of activities falling within

 

sub-paragraphs (i) and (ii); and

 

(iv)    

in relating to descriptions of activities within sub-paragraphs (i)

 

and (ii) which are judged to be of equal value to each other, the

 

average hourly pay of male workers and average hourly pay of

 

female workers carrying on those activities.

 

(3)    

For the purposes of this section, “pay” means the ordinary basic or minimum

 

wage or salary and any other consideration, whether in cash or kind, which the

 

worker receives directly or indirectly, in respect of his employment, from his

 

employer and includes the cost to the employer of—

 

(a)    

any pensions contributions paid by the employer in respect of the worker,

 

(b)    

any bonus or other performance related or incentive payment, and


 
 

Public Bill Committee: 30 June 2009                     

341

 

Equality Bill, continued

 
 

(c)    

any discretionary benefit granted to a worker in connection with his or

 

her employment.

 

(4)    

The Secretary of State shall prescribe by regulations any further information

 

which employers must publish pursuant to subsection (1), the form in which the

 

information must be published, and the degree of publicity to be made.

 

(5)    

In make such regulations the Secretary of State shall adopt best practice for

 

promoting awareness of the nature and causes of any pay gap between persons of

 

different genders as set out by the International Labour Organisation from time to

 

time.

 

(6)    

The Secretary of State shall consult with the Equality and Human Rights

 

Commission as to how to ensure that the regulations shall contain best practice

 

prior to the making of the first regulations and no less than every five years

 

thereafter and shall amend the regulations as necessary to ensure that best practice

 

is maintained.

 

(7)    

Where an employer fails to publish information in accordance with this section

 

then an employer shall not be entitled to submit a material factor defence in

 

accordance with section 64 in relation to any period for which they are in breach

 

of their obligations under this section.

 

(8)    

Where the information published by an employer reveals that there is a difference

 

in the average pay of men and women doing relevant types of work as set out in

 

section 59, then in any proceedings to enforce a sex equality rule or a sex equality

 

clause it shall be presumed that there is such a breach unless the employer can

 

show a material factor defence.

 

(9)    

The regulations may make provision for a failure to comply with the

 

regulations—

 

(a)    

to be an offence punishable on summary conviction by a fine not

 

exceeding level 5 on the standard scale;

 

(b)    

to be enforced, otherwise than as an offence, by such means as is

 

prescribed.

 

(10)    

The reference to a failure to comply with the regulations includes a reference to

 

a failure by a person acting on behalf of an employer.

 

(11)    

An employer shall publish information pursuant to subsection (1) within one year

 

of the coming into force of this Act.

 

(12)    

Where an employer (A) is able to determine the terms and conditions of

 

employment as between another employer (B) and its employees, A shall publish

 

the information that B would otherwise be required to publish in a way which is

 

consolidated with the information for all other employees of A whose terms and

 

conditions A may determine, and where A publishes consolidated information B

 

shall not be in breach of this section if it does not publish any information.

 

(13)    

A designated employer means an employer who has more than 100 employees.’.

 


 

Relevant types of work (No. 2)

 

Dr Evan Harris

 

Lynne Featherstone

 

NC24

 

To move the following Clause:—

 

‘(1)    

Sections 61 to 65 apply where—


 
 

Public Bill Committee: 30 June 2009                     

342

 

Equality Bill, continued

 
 

(a)    

a person (A) is employed on work that is equal to the work that a

 

colleague of the opposite sex (B) does;

 

(b)    

a person (A) holding a personal or public office does work that is equal

 

to the work that colleague (B) of the opposite sex does.

 

(2)    

To the extent set out in sections 61 to 64, those sections also apply where A does

 

not have a colleague B who does work that falls within subsection (1), because

 

there is no such person of the opposite sex to A.’.

 


 

Defence of material factor (No. 2)

 

Dr Evan Harris

 

Lynne Featherstone

 

NC25

 

To move the following Clause:—

 

‘(1)    

The sex equality clause in A’s terms has no effect in relation to a difference

 

between A’s terms and B’s terms if the responsible person shows that the

 

difference is because of a material factor—

 

(a)    

which does not constitute discrimination because of sex within the

 

meaning of section 13, and

 

(b)    

which is within subsection (2).

 

(2)    

A factor is within this subsection if—

 

(a)    

as a result of the factor, A and persons of the same sex as A are or would

 

be put at a particular disadvantage when compared with persons of the

 

opposite sex, but

 

(b)    

the responsible person shows that relying on the factor is objectively

 

justified by a legitimate aim and the means of achieving that aim are

 

appropriate and necessary.

 

(3)    

A sex equality rule has no effect in relation to a difference between A and B in

 

the effect of a relevant matter if the trustees or managers of the scheme in question

 

show that the difference is because of a material factor which—

 

(a)    

does not constitute discrimination because of sex within the meaning of

 

section 13 and

 

(b)    

which is within subsection (2).

 

(4)    

“Relevant matter” has the meaning given in section 62.

 

(5)    

For the purposes of this section, a factor is not material unless it is a material

 

difference between A’s case and B’s.’.

 


 

The Solicitor General

 

That certain written evidence already reported to the House be appended to the

 

proceedings of the Committee.

 


 
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