Equality Bill

House of Commons

Session 2008 - 09
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Equality Bill

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

(2)
The relevant sex discrimination provision (as defined by section 65) has no
effect in relation to the term except in so far as treatment of the person amounts
to a contravention of the provision by virtue of section 13.
Pregnancy and maternity equality
67
Relevant types of work
5
Sections 68 to 71 apply where a woman—
(a)
is employed, or
(b)
holds a personal or public office.
68
Maternity equality clause
(1)
If the terms of the woman’s work do not (by whatever means) include a
10
maternity equality clause, they are to be treated as including one.
(2)
A maternity equality clause is a provision that, in relation to the terms of the
woman’s work, has the effect referred to in section 69(1), (6) and (8).
(3)
In the case of a term relating to membership of or rights under an occupational
pension scheme, a maternity equality clause has only such effect as a maternity
15
equality rule would have.
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Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

Clause 69: Maternity equality clause: pay
Effect
241. This clause sets out how and when a maternity equality clause affects a woman’s pay
while she is on maternity leave.
242. Firstly the maternity equality clause is designed to ensure that any pay increase a
5
woman receives (or would have received if she had not been on maternity leave) is taken into
account in the calculation of her maternity-related pay where her terms do not already provide
for this.
243. Secondly, a maternity equality clause will operate to ensure that pay, including any
bonus, is paid to the woman at the time she would have received it if she had not been on
10
maternity leave.
244. Thirdly, a maternity equality clause will provide for a woman’s pay on her return to
work following maternity leave to take account of any pay increase which she would have
received if she had not been on statutory maternity leave.
Background
15
245. This clause is designed to replicate the effect of provisions in Equal Pay Act 1970.
Examples
• Early in her maternity leave, a woman receiving maternity-related pay becomes
entitled to an increase of pay. If her terms of employment, do not already provide for
the increase to be reflected in her maternity-related pay, the employer must recalculate
20
her maternity pay to take account of the increment.
• A woman becomes entitled to a contractual bonus for work she undertook before she
went on maternity leave. The employer cannot delay payment of the bonus and must
pay it to her when it would have been paid had she not been on maternity leave.
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Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

69
Maternity equality clause: pay
(1)
A term of the woman’s work that provides for maternity-related pay to be
calculated by reference to her pay at a particular time is, if each of the following
three conditions is satisfied, modified as mentioned in subsection (5).
5
(2)
The first condition is that, after the time referred to in subsection (1) but before
the end of the protected period—
(a)
her pay increases, or
(b)
it would have increased had she not been on maternity leave.
(3)
The second condition is that the maternity-related pay is not—
10
(a)
what her pay would have been had she not been on maternity leave, or
(b)
the difference between the amount of statutory maternity pay to which
she is entitled and what her pay would have been had she not been on
maternity leave.
(4)
The third condition is that the terms of her work do not provide for the
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maternity-related pay to be subject to—
(a)
an increase as mentioned in subsection (2)(a), or
(b)
an increase that would have occurred as mentioned in subsection (2)(b).
(5)
The modification referred to in subsection (1) is a modification to provide for
the maternity-related pay to be subject to—
20
(a)
any increase as mentioned in subsection (2)(a), or
(b)
any increase that would have occurred as mentioned in subsection
(2)(b).
(6)
A term of her work that—
(a)
provides for pay within subsection (7), but
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(b)
does not provide for her to be given the pay in circumstances in which
she would have been given it had she not been on maternity leave,

is modified so as to provide for her to be given it in circumstances in which it
would normally be given.
(7)
Pay is within this subsection if it is—
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(a)
pay (including pay by way of bonus) in respect of times before the
woman is on maternity leave,
(b)
pay by way of bonus in respect of times when she is on compulsory
maternity leave, or
(c)
pay by way of bonus in respect of times after the end of the protected
35
period.
(8)
A term of the woman’s work that—
(a)
provides for pay after the end of the protected period, but
(b)
does not provide for it to be subject to an increase to which it would
have been subject had she not been on maternity leave,
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is modified so as to provide for it to be subject to the increase.
(9)
Maternity-related pay is pay (other than statutory maternity pay) to which a
woman is entitled—
(a)
as a result of being pregnant, or
(b)
in respect of times when she is on maternity leave.
45
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Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

Clause 70: Maternity equality rule
Effect
246. This clause introduces a maternity equality rule into all occupational pension schemes.
247. The effect of the rule is that any period when woman is on maternity leave should be
5
treated as time when she is not, in particular in relation to any rule of an occupational pension
scheme which can be applied in respect of:
• scheme membership,
• accrual of scheme rights, and
• determination of benefits.
10
248. The clause makes similar provision in relation to any discretion under scheme rules
which can be exercised in a way that treats a period of maternity leave differently from time
when a woman is not on maternity leave.
249. The woman’s contributions to the scheme during maternity leave need be determined
only by reference to the amount she is paid during maternity leave.
15
250. The provisions of the clause apply only to women on unpaid ordinary maternity leave
where the expected week of confinement began on or after 6 April 2003.
251. The provisions of the clause apply only to a woman on unpaid additional maternity
leave where the expected week of confinement began on or after 5 October 2008 and they do
not apply to the accrual of scheme rights.
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252. Where there has been a breach of a term modified by a maternity equality rule,
proceedings may be brought against the person responsible for the breach under Part 9.
Background
253. This clause replaces the current provisions on “unfair maternity provisions” in
paragraph 5 of Schedule 5 to the Social Security Act 1989 and replicates aspects of
25
Regulations 9 and 18A of the Maternity and Parental Leave etc Regulations 1999.
Examples
• A woman who is on maternity leave will be entitled to continuing membership of the
scheme throughout the period of maternity leave whether or not she is paid.
• A woman who is paid whilst on maternity leave will be entitled to accrue rights in a
30
scheme as though she were paid her usual salary but she will only be required to make
contributions based on her actual pay.
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Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

(10)
A reference to the protected period is to be construed in accordance with
section 17.
70
Maternity equality rule
(1)
If an occupational pension scheme does not include a maternity equality rule,
it is to be treated as including one.
5
(2)
A maternity equality rule is a provision that has the effect set out in subsections
(3) and (4).
(3)
If a relevant term does not treat time when the woman is on maternity leave as
it treats time when she is not, the term is modified so as to treat time when she
is on maternity leave as time when she is not.
10
(4)
If a term confers a relevant discretion capable of being exercised so that time
when she is on maternity leave is treated differently from time when she is not,
the term is modified so as not to allow the discretion to be exercised in that
way.
(5)
A term is relevant if it is—
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(a)
a term relating to membership of the scheme,
(b)
a term relating to the accrual of rights under the scheme, or
(c)
a term providing for the determination of the amount of a benefit
payable under the scheme.
(6)
A discretion is relevant if its exercise is capable of affecting—
20
(a)
membership of the scheme,
(b)
the accrual of rights under the scheme, or
(c)
the determination of the amount of a benefit payable under the scheme.
(7)
This section does not require the woman’s contributions to the scheme in
respect of time when she is on maternity leave to be determined otherwise than
25
by reference to the amount she is paid in respect of that time.
(8)
This section, so far as relating to time when she is on ordinary maternity leave
but is not being paid by her employer, applies only in a case where the
expected week of childbirth began on or after 6 April 2003.
(9)
This section, so far as relating to time when she is on additional maternity leave
30
but is not being paid by her employer—
(a)
does not apply to the accrual of rights under the scheme in any case;
(b)
applies for other purposes only in a case where the expected week of
childbirth began on or after 5 October 2008.
(10)
In this section—
35
(a)
a reference to being on maternity leave includes a reference to having
been on maternity leave, and
(b)
a reference to being paid by the employer includes a reference to
receiving statutory maternity pay from the employer.
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Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

Clause 71: Exclusion of pregnancy and maternity discrimination provisions
Effect
254. This clause provides that the pregnancy and maternity discrimination provisions of the
Bill do not apply where a maternity clause or rule operates.
255. The maternity discrimination provisions prohibit discrimination in relation to non-
5
contractual pay and benefits such as promotion, transfer and training and in relation to offers
of employment or appointment.
256. The maternity equality clause provisions operate only in relation to terms of a contract
of employment, the terms of appointment to a personal or public office and the terms of
service of members of the armed forces and do so by including an equality clause to modify
10
terms governing maternity-related pay.
Background
257. This provision explains the relationship between the two sets of provisions and is
intended to ensure that they provide seamless protection against pregnancy and maternity-
related inequality.
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Example
• A woman who is line for promotion tells her employer that she is pregnant. The
employer tells the woman he will not promote her because she is likely to be absent on
maternity leave during a very busy period. This will be direct pregnancy
discrimination.
20
Clause 72: Discussions with colleagues
Effect
258. This clause is designed to protect people who discuss their pay with colleagues (as
defined in clause 74) with a view to finding out if differences exist that are related to a
protected characteristic. Any action taken against them by the employer as a result of doing so
25
is treated as victimisation, as defined in clause 25, as applied in the clauses listed in the table.
259. Terms of employment or appointment that prevent or restrict people from disclosing
their pay to their colleagues are made unenforceable to the extent that they would prevent or
restrict such a discussion.
Background
30
260. This clause is new. It is intended to ensure that there is greater transparency and
dialogue within workplaces about pay.
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Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms

71
Exclusion of pregnancy and maternity discrimination provisions
(1)
The relevant pregnancy and maternity discrimination provision has no effect
in relation to a term of the woman’s work that is modified by a maternity
equality clause or rule.
(2)
The inclusion in the woman’s terms of a term that requires modification by
5
virtue of section 68(2) or (3) is not pregnancy and maternity discrimination for
the purposes of the relevant pregnancy and maternity discrimination
provision.
(3)
The relevant pregnancy and maternity discrimination provision is, in relation
to a description of work given in the first column of the table, the provision
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referred to in the second column so far as relating to pregnancy and maternity.

Description of work
Provision

Employment
Section 36(2)

Appointment to a personal office
Section 46(6)

Appointment to a public office
Section 47(6)

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Disclosure of information
72
Discussions with colleagues
(1)
A term of a person’s work that prevents or restricts the person (P) from being
involved in discussions with colleagues about the terms of P’s work is
unenforceable against P in so far as P is involved in a relevant pay discussion.
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(2)
A relevant pay discussion is a discussion with a colleague—
(a)
which is about pay, and
(b)
which relates to whether or to what extent there is, in relation to the
work in question, a connection between pay and having (or not having)
a particular protected characteristic.
25
(3)
Being involved in a discussion includes—
(a)
seeking the disclosure by a colleague of information;
(b)
disclosing information to a colleague;
(c)
receiving information disclosed by a colleague.
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