House of Commons Public Bill Committee Proceedings

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Public Bill Committee Proceedings: 7 July 2009
70

Equality Bill, continued

Public authorities

Lynne Featherstone

Dr Evan Harris

Not called  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 Proceedings: 7 July 2009
71

Equality Bill, continued

Statements of compatibility

Lynne Featherstone

Dr Evan Harris

Not called  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

Not called  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

Not called  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.’.

Public Bill Committee Proceedings: 7 July 2009
72

Equality Bill, continued

Assistance with human rights

Mr Tim Boswell

Not selected  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

Not called  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

Lynne Featherstone

Dr Evan Harris

Withdrawn  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.

Public Bill Committee Proceedings: 7 July 2009
73

Equality Bill, continued

(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

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

Lynne Featherstone

Dr Evan Harris

Not called  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

Not called  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).’.

Public Bill Committee Proceedings: 7 July 2009
74

Equality Bill, continued

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

(NC22):—

Dr Evan Harris

Lynne Featherstone

Not called  (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

Not called  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—

Public Bill Committee Proceedings: 7 July 2009
75

Equality Bill, continued

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

(b)
any bonus or other performance related or incentive payment, and

(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

Not called  NC24

To move the following Clause:—

Public Bill Committee Proceedings: 7 July 2009
76

Equality Bill, continued

‘(1)
Sections 61 to 65 apply where—

(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

Not called  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.’.