|
| |
| |
| |
contraventions” (clause 106) to ensure that both the person carrying out an unlawful act and |
| |
any person on whose behalf they were acting can be held to account where appropriate. |
| |
| |
• A landlord (the principal) instructs an agent to collect rent at a property. The agent |
| |
harasses an Asian couple, who bring a claim in which the agent is held to have acted |
| 5 |
unlawfully. The principal may be held liable for breaching the harassment provisions |
| |
even if unaware of the agent’s actions. |
| |
• A shop owner becomes aware that her employee is refusing to serve disabled |
| |
customers. The employer tells the employee to treat disabled customers in the same |
| |
way as other customers and sends the employee on a diversity training course. |
| 10 |
However, the employee continues to treat disabled customers less favourably. One |
| |
such customer brings a claim against both the employee and the employer. The |
| |
employer may avoid liability by arguing that she took all reasonable steps to stop the |
| |
employee from acting in a discriminatory way. |
| |
Clause 104: Liability of employees and agents |
| 15 |
| |
345. This clause makes an employee personally liable for unlawful acts committed in the |
| |
course of employment where, because of clause 103, the employer is also liable - or would be |
| |
but for the defence of having taken all reasonable steps to prevent the employee doing the |
| |
relevant thing. An agent would be equally personally liable under this clause for any unlawful |
| 20 |
acts committed under a principal’s authority. However, an employee or agent will not be liable |
| |
if he or she has been told by the employer or principal that the act is lawful and he or she |
| |
reasonably believes this to be true. |
| |
346. Subsections (4) and (5) make it an offence, punishable by a fine of (currently) up to |
| |
£5,000, for an employer or principal to make a false statement in order to try to get an |
| 25 |
employee or agent to carry out an unlawful act. |
| |
347. This clause does not apply to discriminatory acts done by an employee or agent on the |
| |
grounds of disability in relation to schools because claims for disability discrimination in |
| |
schools cannot be enforced against individuals. |
| |
| 30 |
348. This clause incorporates some of the elements in the “Aiding unlawful acts” |
| |
provisions in current discrimination legislation. It takes a more direct approach and unlike the |
| |
existing provisions it is not necessary to show that the employee or agent knew that the act was |
| |
| |
| 35 |
• A factory worker racially harasses her colleague. The factory owner would be liable |
| |
for the worker’s actions, but is able to show that he took all reasonable steps to stop the |
| |
harassment. The colleague can still bring a claim against the factory worker in an |
| |
| |
| |
|
| |
| |
| |
| |
104 | Liability of employees and agents |
| |
(1) | A person (A) contravenes this section if— |
| |
(a) | A is an employee or agent, |
| |
(b) | A does a thing which, by virtue of section 103(1) or (2), is treated as |
| 5 |
having been done by A’s employer or principal (as the case may be), |
| |
| |
(c) | the doing of the thing by A amounts to a contravention of this Act by |
| |
the employer or principal (as the case may be). |
| |
(2) | It does not matter whether, in any proceedings, the employer is found not to |
| 10 |
have contravened this Act by virtue of section 103(4). |
| |
(3) | A does not contravene this section if— |
| |
(a) | A relies on a statement by the employer or principal that doing the |
| |
thing is not a contravention of this Act, and |
| |
(b) | it is reasonable for A to do so. |
| 15 |
(4) | A person (B) commits an offence if B knowingly or recklessly makes a |
| |
statement mentioned in subsection (3)(a) which is false or misleading in a |
| |
| |
(5) | A person guilty of an offence under subsection (4) is liable on summary |
| |
conviction to a fine not exceeding level 5 on the standard scale. |
| 20 |
(6) | Part 9 (enforcement) applies to a contravention of this section by A as if it were |
| |
the contravention mentioned in subsection (1)(c). |
| |
(7) | The reference in subsection (1)(c) to a contravention of this Act does not |
| |
include a reference to disability discrimination in contravention of Chapter 1 |
| |
| 25 |
| |
|
| |
| |
| |
| |
| |
| |
| |
| 5 |
| |
Clause 105: Instructing and causing discrimination |
| |
| |
349. This clause makes it unlawful for a person to instruct, cause or induce someone to |
| |
discriminate against, harass or victimise another person, or to attempt to do so. |
| 10 |
350. It provides a remedy for both the recipient of the instruction and the intended victim, |
| |
whether or not the instruction is carried out, provided the recipient or intended victim suffers a |
| |
| |
351. However, the clause only applies where the person giving the instruction is in a |
| |
relationship with the recipient of the instruction in which discrimination, harassment or |
| 15 |
victimisation is prohibited. |
| |
352. The Equality and Human Rights Commission can enforce this clause using its |
| |
statutory powers under the Equality Act 2006. Equally, both the recipient of the instruction |
| |
and the intended victim can bring individual claims for breach of this clause against the person |
| |
giving the instructions. A claim brought by the recipient of the instruction will be dealt with in |
| 20 |
the same forum (employment tribunal or county courts) as a direct claim for discrimination, |
| |
harassment or victimisation against the person giving the instruction would be. A claim |
| |
brought by the intended victim against the person giving the instruction will be dealt with in |
| |
the same forum as a claim for discrimination, harassment or victimisation against the person |
| |
carrying out the instruction would be. |
| 25 |
| |
353. This clause replaces provisions in current legislation in relation to race, sex, gender |
| |
reassignment, pregnancy and maternity, age (within the workplace) disability (within the |
| |
workplace), religion or belief (outside of the workplace) and sexual orientation (outside of the |
| |
workplace). It extends protection to all protected characteristics in all areas covered by the Bill |
| 30 |
and allows the Equality and Human Rights Commission to bring enforcement proceedings in |
| |
relation to any action in breach of the clause. (Previously Equality and Human Rights |
| |
Commission’s enforcement powers were not uniform even between the strands and fields |
| |
where there were provisions on instructions to discriminate). The provision expressly allowing |
| |
persons instructed to bring proceedings is new (other than in relation to age for the workplace |
| 35 |
where such provision already exists), and is designed to codify the current position in common |
| |
law (see Weathersfield v Sargent [1999] IRLR 94). The provision expressly allowing the |
| |
intended victim to bring proceedings, even where the instruction is not carried out, is also new |
| |
and is designed to ensure greater clarity about the protection under current legislation. |
| |
| 40 |
• A GP instructs his receptionist not to register anyone with an Asian name. The |
| |
receptionist would have a claim against the GP if subjected to a detriment for not |
| |
doing so. A potential patient would also have a claim against the GP if she discovered |
| |
| |
|
| |
| |
| |
| |
105 | Instructing and causing discrimination |
| |
(1) | A person (A) must not instruct another (B) to do in relation to a third person |
| |
(C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 102(1) or (2) or |
| |
106(1) (a basic contravention). |
| 5 |
(2) | A person (A) must not cause another (B) to do in relation to a third person (C) |
| |
anything which is a basic contravention. |
| |
(3) | A person (A) must not induce another (B) to do in relation to a third person (C) |
| |
anything which is a basic contravention. |
| |
(4) | For the purposes of subsection (3), inducement may be direct or indirect. |
| 10 |
(5) | Proceedings for a contravention of this section may be brought— |
| |
(a) | by B, if B is subjected to a detriment as a result of A’s conduct; |
| |
(b) | by C, if C is subjected to a detriment as a result of A’s conduct; |
| |
| |
(6) | For the purposes of subsection (5), it does not matter whether— |
| 15 |
(a) | the basic contravention occurs; |
| |
(b) | any other proceedings are, or may be, brought in relation to A’s |
| |
| |
(7) | This section does not apply unless the relationship between A and B is such |
| |
that A is in a position to commit a basic contravention in relation to B. |
| 20 |
(8) | A reference in this section to causing or inducing a person to do a thing |
| |
includes a reference to attempting to cause or induce the person to do the thing. |
| |
(9) | For the purposes of Part 9 (enforcement), a contravention of this section is to be |
| |
| |
(a) | in a case within subsection (5)(a), to the Part of this Act which, because |
| 25 |
of the relationship between A and B, A is in a position to contravene in |
| |
| |
(b) | in a case within subsection (5)(b), to the Part of this Act which, because |
| |
of the relationship between B and C, B is in a position to contravene in |
| |
| 30 |
| |
|
| |
| |
| |
the instruction had been given and was put off applying to register. The receptionist’s |
| |
claim against the GP would be brought before the employment tribunal as it relates to |
| |
employment, while the potential patient’s claim would be brought in the county court |
| |
as it relates to services. |
| |
Clause 106: Aiding contraventions |
| 5 |
| |
354. This clause makes it unlawful for a person to help someone carry out an act which he |
| |
or she knows is unlawful under the Bill. However, this is not unlawful if the person giving |
| |
assistance has been told that the act is lawful and he or she reasonably believes this to be true. |
| |
355. It makes it an offence, punishable by a fine of (currently) up to £5,000, to make a false |
| 10 |
statement in order to try to get another person’s help to carry out an unlawful act. |
| |
356. For the purposes of enforcement, breaches of the prohibition on aiding contraventions |
| |
are dealt with under the same procedures in the Bill as the contraventions themselves. |
| |
| |
357. This clause is designed to replicate the effect of similar provisions in current |
| 15 |
legislation. It ensures that a person who helps another to do something which they know to be |
| |
prohibited by the Bill is liable in their own right. Taken together with the provisions “Liability |
| |
of employers and principals” (clause 103), “Liability of employees and agents” (clause 104) |
| |
and “Instructing and causing discrimination” (clause 105) of the Bill. |
| |
| 20 |
• On finding out that a new tenant is gay, a landlord discriminates against him by |
| |
refusing him access to certain facilities, claiming that they are not part of the tenancy |
| |
agreement. Another tenant knows this to be false but joins in with the landlord in |
| |
refusing the new tenant access to the facilities in question. The new tenant can bring a |
| |
discrimination claim against both the landlord and the tenant who helped him. |
| 25 |
| |
| |
| |
| |
358. This clause applies the provisions of Part 9 to claims made under the Bill. These |
| 30 |
claims must be brought either in a county court (sheriff court in Scotland) or in an employment |
| |
tribunal. Clauses 108 and 114 set out which claims should be brought in the civil courts and |
| |
| |
359. This clause does not affect the enforcement powers of the Equality and Human Rights |
| |
Commission which are in Part 1 of the Equality Act 2006. Nor does it prevent judicial review |
| 35 |
| |
|
| |
| |
| |
| |
106 | Aiding contraventions |
| |
(1) | A person (A) must not knowingly help another (B) to do anything which |
| |
contravenes Part 3, 4, 5, 6 or 7 or section 102(1) or (2) or 105 (a basic |
| |
| 5 |
(2) | It is not a contravention of subsection (1) if— |
| |
(a) | A relies on a statement by B that the act for which the help is given does |
| |
not contravene this Act, and |
| |
(b) | it is reasonable for A to do so. |
| |
(3) | B commits an offence if B knowingly or recklessly makes a statement |
| 10 |
mentioned in subsection (2)(a) which is false or misleading in a material |
| |
| |
(4) | A person guilty of an offence under subsection (3) is liable on summary |
| |
conviction to a fine not exceeding level 5 on the standard scale. |
| |
(5) | For the purposes of Part 9 (enforcement), a contravention of this section is to be |
| 15 |
treated as relating to the provision of this Act to which the basic contravention |
| |
| |
(6) | The reference in subsection (1) to a basic contravention does not include a |
| |
reference to disability discrimination in contravention of Chapter 1 of Part 6 |
| |
| 20 |
| |
| |
| |
| |
| 25 |
(1) | Proceedings relating to a contravention of this Act must be brought in |
| |
accordance with this Part. |
| |
(2) | Subsection (1) does not apply to proceedings under Part 1 of the Equality Act |
| |
| |
(3) | Subsection (1) does not prevent— |
| 30 |
| |
|
| |
| |
| |
proceedings (or the equivalent in Scotland) or certain immigration proceedings related to |
| |
compliance with the Bill’s provisions. |
| |
| |
360. This provision replaces similar provisions in the current legislation. |
| |
| 5 |
| |
| |
361. This clause sets out what types of claims under the Bill a county court or (in Scotland) |
| |
the sheriff court has jurisdiction to hear. These are claims related to provision of services, the |
| |
exercise of public functions, disposal and management of premises, education (other than in |
| 10 |
relation to disability), and associations. |
| |
362. There is a presumption that a judge or sheriff will appoint an assessor to assist the |
| |
court when hearing discrimination cases. However, an assessor need not be appointed where |
| |
there are good reasons not to (for example, after an assessment of the judge’s own level of |
| |
experience, the nature of the case and the wishes of the claimant). |
| 15 |
| |
363. This clause is designed to replicate the effect of provisions in current legislation. |
| |
However, for the first time the Bill enables disability discrimination in schools cases in |
| |
Scotland to be heard in the Additional Support Needs Tribunals (Scotland) rather than the |
| |
sheriff courts, where they are heard at present. |
| 20 |
364. Currently, two assessors sit with judges in cases involving race and sex discrimination |
| |
only. This clause extends the requirement to have assessors for cases of discrimination based |
| |
on any protected characteristic, such as sexual orientation or religion or belief, but reduces the |
| |
number of assessors used in each case to one. |
| |
| 25 |
• A woman has joined a golf club but, because she is a woman, she is allowed to play |
| |
golf only on Tuesday afternoons and is not allowed access to the club bar. She could |
| |
bring a discrimination claim in the county or (if the golf course is in Scotland) sheriff |
| |
| |
| |
|
