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Equality Bill


 

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

 
 

Examples

• A female employee thinks she is underpaid compared with a male colleague. She asks

him what he is paid, and he tells her. The employer takes disciplinary action against

the man as a result. The man can bring a claim for victimisation against the employer

for disciplining him.

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• A female employee discloses her pay to one of her employer’s competitors in breach

of a confidentiality clause in her contract. The employer could take action against her

in relation to that breach.

Clause 73: Gender pay gap information

Effect

10

261. This clause enables a Minister of the Crown to make regulations requiring private

sector employers with at least 250 employees in Great Britain to publish information about the

differences in pay between their male and female employees. The regulations may specify,

among other things, the form and timing of the publication, which will be no more frequently

than annually. The regulations may also specify penalties for non-compliance. Employers who

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do not comply with the publication requirements could face civil enforcement procedures or

be liable for a criminal offence, punishable by a fine of up to £5,000.

Background

262. This is a new provision. The Government wants large private sector employers in

Great Britain to publish information on what they pay their male and female employees, so

20

that their gender pay gap (the size of the difference between men and women’s pay expressed

as a percentage) is in the public domain.

263. The Government’s aim is for employers regularly to publish such information on a

voluntary basis. To give voluntary arrangements time to work, the Government does not

intend to make regulations under this power before April 2013. The power would then be used

25

only if sufficient progress on reporting had not been made by that time.

E55


 

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

 
 

(4)   

Being involved in a relevant pay discussion is to be treated as a protected act

for the purposes of the relevant victimisation provision.

(5)   

The relevant victimisation provision is, in relation to a description of work

specified in the first column of the table, section 25 in so far as it applies for the

purposes of a provision mentioned in the second column.

5

 

Description of work

Provision by virtue of which

 
  

section 25 has effect

 
 

Employment

  Section 36(3) or (4)

 
 

Appointment to a personal office

  Section 46(5) or (8)

 
 

Appointment to a public office

  Section 47(5) or (9)

 

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(6)   

A reference to a colleague includes a reference to a person who used to be a

colleague in relation to the work in question.

73      

Gender pay gap information

(1)   

A Minister of the Crown may by regulations require employers to publish

information relating to the pay of employees for the purpose of showing

15

whether, by reference to factors of such description as is prescribed, there are

differences in the pay of male and female employees.

(2)   

This section does not apply to—

(a)   

an employer who has fewer than 250 employees;

(b)   

a person specified in Schedule 19.

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(3)   

The regulations may prescribe—

(a)   

descriptions of employer;

(b)   

descriptions of employee;

(c)   

how to calculate the number of employees that an employer has;

(d)   

descriptions of information;

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(e)   

the time at which information is to be published;

(f)   

the form and manner in which it is to be published.

(4)   

Regulations under subsection (3)(e) may not require an employer, after the first

publication of information, to publish information more frequently than at

intervals of 12 months.

30

(5)   

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

35

prescribed.

(6)   

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.

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

 
 

Clause 74: Colleagues

Effect

264. This clause sets out the circumstances in which employees and others are taken to be

colleagues for the purposes of Chapter 3. A person who claims the benefit of a sex equality

clause or sex equality rule must be able to show their work is equal to that of a colleague.

5

265. If two persons share the same employer and work at the same establishment, they are

colleagues.

266. If two persons work at different establishments but share the same employer and

common terms and conditions of employment apply, they are colleagues.

267. A person can also be a colleague of another in either of the above circumstances if one

10

is employed by a company associated with the other’s employer. The clause defines when

employers are taken to be associated.

268. A person holding a personal or public office is the colleague of another person holding

a personal or public office if the same person is responsible for paying both of them.

269. A person holding the office of constable is treated for the purposes of Chapter 3 as

15

holding a personal office for the purpose of determining who can be that person’s colleague.

270. The clause also defines when staff of the Houses of Parliament are taken to be

colleagues.

Background

271. These provisions generally reflect the effect of provisions in current legislation.

20

Examples

• A woman is employed by a company at a factory. A male works for the same company

at another factory. Common terms of employment apply at both establishments. The

woman and man are colleagues.

Clause 75: Interpretation and exceptions

25

Effect

272. This clause explains the meaning of terms used in Chapter 3. It also gives effect to

Schedule 7 which sets out exceptions to the equality of terms provisions.

E56


 

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

 
 

Supplementary

74      

Colleagues

(1)   

This section applies for the purposes of this Chapter.

(2)   

If A is employed, B is a colleague of A’s only if subsection (3) or (4) applies.

(3)   

This subsection applies if—

5

(a)   

B is employed by A’s employer or by an associate of A’s employer, and

(b)   

A and B work at the same establishment.

(4)   

This subsection applies if—

(a)   

B is employed by A’s employer or an associate of A’s employer,

(b)   

B works at an establishment other than the one at which A works, and

10

(c)   

common terms apply at the establishments (either generally or as

between A and B).

(5)   

If A holds a personal or public office, B is a colleague of A’s only if—

(a)   

B holds a personal or public office, and

(b)   

the person responsible for paying A is also responsible for paying B.

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(6)   

If A is a relevant member of the House of Commons staff, B is a colleague of

A’s only if—

(a)   

B is employed by the person who is A’s employer under subsection (6)

of section 195 of the Employment Rights Act 1996, or

(b)   

if subsection (7) of that section applies in A’s case, B is employed by the

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person who is A’s employer under that subsection.

(7)   

If A is a relevant member of the House of Lords staff, B is a colleague of A’s

only if B is also a relevant member of the House of Lords staff.

(8)   

Section 39 does not apply to this Chapter; accordingly, for the purposes of this

Chapter only, holding the office of constable is to be treated as holding a

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personal office.

(9)   

For the purposes of this section, employers are associated if—

(a)   

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

or

(b)   

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

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control.

75      

Interpretation and exceptions

(1)   

This section applies for the purposes of this Chapter.

(2)   

The terms of a person’s work are—

(a)   

if the person is employed, the terms of the person’s employment that

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are in the person’s contract of employment, contract of apprenticeship

or contract to do work personally;

(b)   

if the person holds a personal or public office, the terms of the person’s

appointment to the office.

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

 
 

Chapter 4: Supplementary

Clause 76: Ships and hovercraft

Effect

273. This clause provides that the employment provisions in Part 5 will apply to seafarers

and the crew of hovercraft only in the way set out in regulations made by a Minister of the

5

Crown.

Background

274. The Bill is silent on the territorial application of the employment provisions. While

this approach is acceptable for most workers, who at any given time are within either the

territory of United Kingdom or some other territory, seafarers work on ships that may be

10

constantly moving between waters under the jurisdiction of different States. This clause will

allow the Minister to say to which seafarers on which ships, and to which crew on which

hovercraft, the employment provisions apply in accordance with international law and custom

and the global practices of the shipping industry. The Minister may make provision with

regard to ships outside Great Britain.

15

275. This clause replaces provisions concerning the territorial application and the pay of

seafarers in current legislation.

E57


 

Equality Bill
Part 5 — Work
Chapter 4 — Supplementary

 
 

(3)   

If work is not done at an establishment, it is to be treated as done at the

establishment with which it has the closest connection.

(4)   

A person (P) is the responsible person in relation to another person if—

(a)   

P is the other’s employer;

(b)   

P is responsible for paying remuneration in respect of a personal or

5

public office that the other holds.

(5)   

A job evaluation study is a study undertaken with a view to evaluating, in

terms of the demands made on a person by reference to factors such as effort,

skill and decision-making, the jobs to be done—

(a)   

by some or all of the workers in an undertaking or group of

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undertakings, or

(b)   

in the case of the armed forces, by some or all of the members of the

armed forces.

(6)   

In the case of Crown employment, the reference in subsection (5)(a) to an

undertaking is to be construed in accordance with section 191(4) of the

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Employment Rights Act 1996.

(7)   

“Civil partnership status” has the meaning given in section 124(1) of the

Pensions Act 1995.

(8)   

Schedule 7 (exceptions) has effect.

Chapter 4

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Supplementary

76      

Ships and hovercraft

(1)   

This Part applies in relation to—

(a)   

work on ships,

(b)   

work on hovercraft, and

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(c)   

seafarers,

   

only in such circumstances as are prescribed.

(2)   

For the purposes of this section, it does not matter whether employment arises

or work is carried out within or outside the United Kingdom.

(3)   

“Ship” has the same meaning as in the Merchant Shipping Act 1995.

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(4)   

“Hovercraft” has the same meaning as in the Hovercraft Act 1968.

(5)   

“Seafarer” means a person employed or engaged in any capacity on board a

ship or hovercraft.

(6)   

Nothing in this section affects the application of any other provision of this Act

to conduct outside England and Wales or Scotland.

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57


 

Equality Bill
Part 5 — Work
Chapter 4 — Supplementary

 
 

Clause 77: Offshore work

Effect

276. This clause contains a power to make an Order in Council in relation to work on board

offshore installations. The power may be used to apply Part 5 (with or without modification)

to those working on such installations. The power may also be used in relation to any

5

corresponding Northern Ireland legislation (with or without modification).

Background

277. This clause will enable protection to be extended to workers on offshore installations,

such as oil and gas rigs and renewable energy installations (generally wind farms), to reflect

the extent of current discrimination legislation.

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Example

• Offshore workers are typically workers (either employees, contract workers, partners,

members of an LLP, or personal or public office holders) on oil and gas rigs located in

the sea within the area of the United Kingdom Continental Shelf (UKCS), and on

renewable energy installations (generally wind farms) within the part of the UKCS

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known as the Renewable Energy Zone.

Clause 78: Interpretation and exceptions

Effect

278. This clause explains the meaning of various terms used in Part 5 of the Bill. In

particular, it defines what is meant by “employment” and clarifies the status of people serving

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in the armed forces and people who work for the Crown and in the Houses of Commons and

Lords in relation to the application of the provisions in this Part of the Bill.

E58


 
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