|
|
| |
|
(h) | a county council in Wales; |
| |
(i) | a community council in Wales; |
| |
(j) | a county borough council in Wales; |
| |
(k) | a council constituted under section 2 of the Local Government etc. |
| |
| 5 |
(l) | a community council in Scotland. |
| |
(3) | A Minister of the Crown may by order amend subsection (2) so as to add, vary |
| |
or omit a reference to a body which exercises functions that have been |
| |
conferred on a local authority within paragraph (a) to (l). |
| |
(4) | A reference to the carrying-out of official business by a person who is a |
| 10 |
member of a local authority is a reference to the doing of anything by the |
| |
| |
(a) | as a member of the authority, |
| |
(b) | as a member of a body to which the person is appointed by, or |
| |
appointed following nomination by, the authority or a group of bodies |
| 15 |
including the authority, or |
| |
(c) | as a member of any other public body. |
| |
(5) | “Member”, in relation to the Greater London Authority, means— |
| |
| |
(b) | a member of the London Assembly. |
| 20 |
| |
Occupational pension schemes |
| |
57 | Non-discrimination rule |
| |
(1) | An occupational pension scheme must be taken to include a non- |
| |
| 25 |
(2) | A non-discrimination rule is a provision by virtue of which a responsible |
| |
| |
(a) | must not discriminate against another person (B) in carrying out any of |
| |
A’s functions in relation to the scheme; |
| |
(b) | must not, in relation to the scheme, harass B; |
| 30 |
(c) | must not, in relation to the scheme, victimise B. |
| |
(3) | The provisions of an occupational pension scheme have effect subject to the |
| |
| |
(4) | The following are responsible persons— |
| |
(a) | the trustees or managers of the scheme; |
| 35 |
(b) | an employer whose employees are, or may be, members of the scheme; |
| |
(c) | a person exercising an appointing function in relation to an office the |
| |
holder of which is, or may be, a member of the scheme. |
| |
(5) | A non-discrimination rule does not apply in relation to a person who is a |
| |
pension credit member of a scheme. |
| 40 |
(6) | An appointing function is any of the following— |
| |
(a) | the function of appointing a person; |
| |
| |
|
|
| |
|
201. The non-discrimination rule does not apply where an equality rule operates or would |
| |
operate, but for the exceptions in Part 2 of Schedule 7. |
| |
| |
202. Occupational pension schemes are already required to have non-discrimination rules |
| |
in respect of age, disability, religion or belief and sexual orientation. When this provision |
| 5 |
comes into force, they will also have to have non-discrimination rules in respect of gender |
| |
reassignment, marriage and civil partnership and sex. |
| |
203. Exceptions to the non-discrimination rule in relation to age are currently set out at |
| |
Schedule 2 to the Employment Equality (Age) Regulations 2006 (SI 2006/1031). |
| |
| 10 |
• A disabled person is refused membership of an occupational pension scheme because |
| |
the trustees believe it is not in the person’s best interest to join. This is because the |
| |
person has a short life expectancy and is unlikely to build up a reasonable pension. |
| |
Although the trustees believe they are acting reasonably, they may be liable to |
| |
challenge because they have breached the non-discrimination rule. |
| 15 |
Clause 58: Communications |
| |
| |
204. This clause applies clause 114, 120 and paragraph 19 of Schedule 8 and the provisions |
| |
of this Chapter, in their application to communications, to a disabled person who is: |
| |
• entitled to the present payment of dependants’ or survivors’ benefits under an |
| 20 |
occupational pension scheme, or |
| |
• entitled to a pension derived from a divorce settlement (pension credit member). |
| |
| |
205. This clause replaces the current provisions in the Disability Discrimination Act 1995. |
| |
Chapter 3: Equality of terms |
| 25 |
Clause 59: Relevant types of work |
| |
| |
206. This Chapter contains provisions designed to achieve equality between men and |
| |
women in pay and other terms of employment where the work of an employee and his or her |
| |
| |
|
|
| |
|
(b) | the function of terminating a person’s appointment; |
| |
(c) | the function of recommending a person for appointment; |
| |
(d) | the function of approving an appointment. |
| |
(7) | The breach of a non-discrimination rule is a contravention of this Part for the |
| |
purposes of Part 9 (enforcement). |
| 5 |
(8) | It is not a breach of a non-discrimination rule for the employer or the trustees |
| |
or managers of a scheme to maintain or use in relation to the scheme rules, |
| |
practices, actions or decisions relating to age which are of a description |
| |
specified by order by a Minister of the Crown. |
| |
(9) | An order authorising the use of rules, practices, actions or decisions which are |
| 10 |
not in use before the order comes into force must not be made unless the |
| |
Minister consults such persons as the Minister thinks appropriate. |
| |
(10) | A non-discrimination rule does not have effect in relation to an occupational |
| |
pension scheme in so far as an equality rule has effect in relation to it (or would |
| |
have effect in relation to it but for Part 2 of Schedule 7). |
| 15 |
(11) | A duty to make reasonable adjustments applies to a responsible person. |
| |
| |
(1) | In their application to communications the following provisions apply in |
| |
relation to a disabled person within subsection (2) as they apply in relation to |
| |
a disabled person who is a member of an occupational pension scheme— |
| 20 |
| |
| |
| |
(d) | paragraph 19 of Schedule 8 (and such other provisions of that Schedule |
| |
as apply for the purposes of that paragraph). |
| 25 |
(2) | A disabled person within this subsection is a disabled person who is— |
| |
(a) | entitled to the present payment of dependants’ or survivors’ benefits |
| |
| |
(b) | a pension credit member of the scheme. |
| |
(3) | Communications include— |
| 30 |
(a) | the provision of information; |
| |
(b) | the operation of a dispute resolution procedure. |
| |
| |
| |
| 35 |
59 | Relevant types of work |
| |
Sections 61 to 65 apply where— |
| |
| |
|
|
| |
|
comparator of the opposite sex is equal. It does so by providing for a sex equality clause to be |
| |
read into the employee’s contract of employment. This is designed to ensure parity of terms |
| |
between the employee and his or her comparator. A similar provision – referred to as a sex |
| |
equality rule – is implied into the terms of pension schemes. |
| |
207. This clause explains that the clauses mentioned which impose the equality clause and |
| 5 |
equality rule apply to employees, office holders and, by virtue of subsection (3) of clause 78, |
| |
members of the armed forces, where one person’s work is equal to the work of another. |
| |
| |
208. This is a new provision that is designed to clarify to whom the equality clause and |
| |
equality rule provisions of the Bill apply. The reference to colleague and its definition clarify, |
| 10 |
but do not widen the existing provisions on who a person can use as a comparator for the |
| |
purpose of a claim for breach of an equality clause or rule. |
| |
| |
• A female employee can compare her work with that of a male colleague employed by |
| |
| 15 |
• A male police officer can compare his work with that of a female police officer in the |
| |
| |
| |
| |
209. This clause sets out when the work of two people, whose work is being compared, is |
| 20 |
taken to be equal so that an equality clause or equality rule can operate. For work to be equal, |
| |
a claimant must establish that he or she is doing like work, work rated as equivalent or work of |
| |
equal value to a comparator’s work. The clause also sets out the factors which determine |
| |
whether a person’s work is within one of these categories. The fact that a discriminatory job |
| |
evaluation study has been carried out which gives different values to the work of men and |
| 25 |
women is not an obstacle to the operation of an equality clause if an evaluation that set the |
| |
same values for men and women would have found the jobs to be of equal value. |
| |
| |
210. This clause is designed to replicate the substance of definitions contained in the Equal |
| |
| 30 |
| |
• Male and female supermarket employees who perform similar tasks which require |
| |
similar skills will be doing like work even though the men may lift heavier objects |
| |
from time to time. This is because the differences are not of practical importance in |
| |
relation to their terms of employment. |
| 35 |
• A job evaluation study rated the jobs of women and their better paid male comparators |
| |
as not equivalent. If the study had not given undue weight to the skills involved in the |
| |
men’s jobs, it would have rated the jobs as equivalent. An equality clause would |
| |
operate in this situation. |
| |
| |
|
|
| |
|
(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 a colleague (B) of the opposite sex does. |
| |
| 5 |
(1) | For the purposes of this Chapter, A’s work is equal to that of B if it is— |
| |
| |
(b) | rated as equivalent to B’s work, or |
| |
(c) | of equal value to B’s work. |
| |
(2) | A’s work is like B’s work if— |
| 10 |
(a) | A’s work and B’s work are the same or broadly similar, and |
| |
(b) | such differences as there are between their work are not of practical |
| |
importance in relation to the terms of their work. |
| |
(3) | So on a comparison of one person’s work with another’s for the purposes of |
| |
subsection (2), it is necessary to have regard to— |
| 15 |
(a) | the frequency with which differences between their work occur in |
| |
| |
(b) | the nature and extent of the differences. |
| |
(4) | A’s work is rated as equivalent to B’s work if a job evaluation study— |
| |
(a) | gives an equal value to A’s job and B’s job in terms of the demands |
| 20 |
| |
(b) | would give an equal value to A’s job and B’s job in those terms were the |
| |
evaluation not made on a sex-specific system. |
| |
(5) | A system is sex-specific if, for the purposes of one or more of the demands |
| |
made on a worker, it sets values for men different from those it sets for women. |
| 25 |
(6) | A’s work is of equal value to B’s work if it is— |
| |
(a) | neither like B’s work nor rated as equivalent to B’s work, but |
| |
| |
|
|
| |
|
Clause 61: Sex equality clause |
| |
| |
211. This clause requires that a sex equality clause be read into the terms under which |
| |
people are employed. The effect of this is that any term in the contract which is less |
| |
favourable than that of the comparator of the opposite sex is modified so as to ensure that both |
| 5 |
have the same effect. Where the comparator benefits from a term which is not available to the |
| |
employee, the effect of the sex equality clause is to include such a term in the employee’s |
| |
| |
212. A sex equality clause will operate similarly on the terms of a person who is an |
| |
appointee to an office or a member of the armed forces, as it does in relation to an employee. |
| 10 |
213. Subsection (3) is intended to ensure that the provisions relating to equality of terms at |
| |
work and the provisions governing pension schemes in clauses 62 and 63 operate effectively |
| |
together so that action can be taken against an employer as it could against a trustee, to ensure, |
| |
for example that a defence that operates in relation to one, will operate in relation to the other. |
| |
214. Where a job evaluation study has rated the work of an employee and comparator as |
| 15 |
equivalent, the equality clause will give the employee the benefit of all of the comparator’s |
| |
terms, including those which have not been determined by the rating of the work. |
| |
| |
215. This clause is designed to replicate the effect of definitions contained in the Equal Pay |
| |
| 20 |
| |
• A male employee’s contract includes a term that he can use his employer’s car for |
| |
private purposes. His female colleague who does equal work does not benefit from this |
| |
term. A sex equality clause will have the effect of including in her contract a term |
| |
corresponding to that of her male colleague. |
| 25 |
Clause 62: Sex equality rule |
| |
| |
216. This clause requires that every occupational pension scheme is to have a sex equality |
| |
| |
217. The rule requires that men and women are treated equally to comparable members of |
| 30 |
the opposite sex in relation both to the terms on which they are permitted to join the scheme, |
| |
and to the terms on which they are treated once they have become scheme members. |
| |
218. The rule, insofar as it applies to the terms on which a person is treated once they have |
| |
become a member of the scheme, does not apply to pensionable service before 17 May 1990. |
| |
This was the date of the European Court’s decision in Barber v Guardian Royal Exchange |
| 35 |
| |
|
|
| |
|
(b) | nevertheless equal to B’s work in terms of the demands made on A by |
| |
reference to factors such as effort, skill and decision-making. |
| |
| |
(1) | If the terms of A’s work do not (by whatever means) include a sex equality |
| |
clause, they are to be treated as including one. |
| 5 |
(2) | A sex equality clause is a provision that has the following effect— |
| |
(a) | if a term of A’s is less favourable to A than a corresponding term of B’s |
| |
is to B, A’s term is modified so as not to be less favourable; |
| |
(b) | if A does not have a term which corresponds to a term of B’s that |
| |
benefits B, A’s terms are modified so as to include such a term. |
| 10 |
(3) | Subsection (2)(a) applies to a term of A’s relating to membership of or rights |
| |
under an occupational pension scheme only in so far as a sex equality rule |
| |
would have effect in relation to the term. |
| |
(4) | In the case of work within section 60(1)(b), a reference in subsection (2) above |
| |
to a term includes a reference to such terms (if any) as have not been |
| 15 |
determined by the rating of the work (as well as those that have). |
| |
| |
(1) | If an occupational pension scheme does not include a sex equality rule, it is to |
| |
be treated as including one. |
| |
(2) | A sex equality rule is a provision that has the following effect— |
| 20 |
(a) | if a relevant term is less favourable to A than it is to B, the term is |
| |
modified so as not to be less favourable; |
| |
(b) | if a term confers a relevant discretion capable of being exercised in a |
| |
way that would be less favourable to A than to B, the term is modified |
| |
so as to prevent the exercise of the discretion in that way. |
| 25 |
(3) | A term is relevant if it is— |
| |
| |
|