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Equality Bill


 

Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

 
 

377. This provision is designed to replicate the effect of provisions in the current

legislation.

Chapter 3: Employment tribunals

Clause 114: Jurisdiction

Effect

5

378. This clause sets out what types of claims under the Bill the employment tribunals have

jurisdiction to hear. These are cases involving discrimination in a work context (which

includes contract workers, partners, office holders and barristers and advocates). Their

jurisdiction also includes cases about the terms of collective agreements (which can cover any

of the terms of employment) and rules of undertakings which are unenforceable under clause

10

139 because they provide for treatment which is prohibited by the Bill.

379. An employment tribunal also has jurisdiction to determine a complaint relating to a

breach of an equality clause or an equality rule. This includes a complaint about arrears of pay,

benefits or damages.

380. An employment tribunal can also make a ruling on an application made by the trustees

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or managers of an occupational pension scheme for a declaration about their rights and those

of a member or prospective member of the scheme.

Background

381. This clause is designed to replicate the effect of provisions in the current legislation.

Examples

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• A worker is racially abused by a co-worker. She could bring a discrimination claim in

the employment tribunal.

• A gay man has applied to become a partner in a firm of accountants but because he is

homosexual has not been invited for an interview despite being equally or better

qualified than other candidates who were invited for an interview. He could bring a

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discrimination claim in the employment tribunal.

E83


 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

 
 

(4)   

An award of damages may include compensation for injured feelings (whether

or not it includes compensation on any other basis).

(5)   

In the case of a contravention by virtue of section 18 of a provision referred to

in section 108(1), the county court or sheriff must not make an award of

damages—

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(a)   

if satisfied that the provision, criterion or practice was not applied with

the intention of discriminating against the claimant or pursuer, or

(b)   

without considering whether to make any other disposal.

(6)   

The county court or sheriff must not grant a remedy other than an award of

damages or the making of a declaration unless satisfied that no criminal matter

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would be prejudiced by doing so.

Chapter 3

Employment tribunals

114     

Jurisdiction

(1)   

An employment tribunal has, subject to section 115, jurisdiction to determine a

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complaint relating to—

(a)   

a contravention of Part 5 (work);

(b)   

a contravention of section 102, 105 or 106 that relates to Part 5.

(2)   

An employment tribunal has jurisdiction to determine an application by a

responsible person (as defined by section 57) for a declaration as to the rights

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of that person and a worker in relation to a dispute about the effect of a non-

discrimination rule.

(3)   

An employment tribunal also has jurisdiction to determine an application by

the trustees or managers of an occupational pension scheme for a declaration

as to their rights and those of a member in relation to a dispute about the effect

25

of a non-discrimination rule.

(4)   

An employment tribunal also has jurisdiction to determine a question that—

(a)   

relates to a non-discrimination rule, and

(b)   

is referred to the tribunal by virtue of section 116.

(5)   

In proceedings before an employment tribunal on a complaint relating to a

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breach of a non-discrimination rule, the employer—

(a)   

is to be treated as a party, and

(b)   

is accordingly entitled to appear and be heard.

(6)   

Nothing in this section affects such jurisdiction as the High Court, a county

court, the Court of Session or the sheriff has in relation to a non-discrimination

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rule.

(7)   

Subsection (1)(a) does not apply to a contravention of section 50 in so far as the

act complained of may, by virtue of an enactment, be subject to an appeal or

proceedings in the nature of an appeal.

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Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

 
 

Clause 115: Jurisdiction in armed forces cases

Effect

382. This clause establishes that, before bringing a claim under the work provisions of the

Bill to an employment tribunal, a member of the armed forces must raise his or her complaint

through the armed services internal complaints procedure and not withdraw that complaint. If

5

the complainant fails properly to progress his or her internal complaint then it may, in certain

circumstances, be treated as if it had been withdrawn. The internal service complaint

procedures do not have to be concluded before the complainant brings a claim to an

employment tribunal.

Background

10

383. This clause is designed to replicate the effect of provisions in the current legislation.

Example

• A black soldier who thinks he has been discriminated against by being passed over for

promotion would have to make an internal service complaint before bringing his claim

to an employment tribunal.

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Clause 116: References by court to tribunal, etc.

Effect

384. The Bill does not prevent the civil courts from considering a claim that a pension

scheme operates in a discriminatory manner. This clause enables a court to strike out such a

claim if it would be more convenient for an employment tribunal to deal with it, or to refer an

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issue relating to such a claim to an employment tribunal.

Background

385. Employment tribunals have the specialist knowledge and procedures to handle claims

relating to discrimination in the work context and this clause gives a court power to refer such

issues to a tribunal. This clause reflects similar provisions in current legislation.

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Example

• An employee who is member of a pension scheme sues his employer in court alleging

the employer operates the scheme in a discriminatory manner. The court decides to

refer the issue to an employment tribunal and postpones the case until the tribunal’s

decision.

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E84


 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

 
 

115     

Jurisdiction in armed forces cases

(1)   

Section 114(1) does not apply to a complaint relating to an act done when the

complainant was serving as a member of the armed forces unless—

(a)   

the complainant has made a service complaint about the matter, and

(b)   

the complaint has not been withdrawn.

5

(2)   

If the complaint is made under the service complaint procedures, it is to be

treated for the purposes of subsection (1)(b) as withdrawn if—

(a)   

neither the officer to whom it is made nor a superior officer refers it to

the Defence Council, and

(b)   

the complainant does not apply for it to be referred to the Defence

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Council.

(3)   

If the complaint is made under the old service redress procedures, it is to be

treated for the purposes of subsection (1)(b) as withdrawn if the complainant

does not submit it to the Defence Council under those procedures.

(4)   

The reference in subsection (3) to the old service redress procedures is a

15

reference to the procedures (other than those relating to the making of a report

on a complaint to Her Majesty) referred to in—

(a)   

section 180 of the Army Act 1955,

(b)   

section 180 of the Air Force Act 1955, or

(c)   

section 130 of the Naval Discipline Act 1957.

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(5)   

The making of a complaint to an employment tribunal in reliance on subsection

(1) does not affect the continuation of the service complaint procedures or (as

the case may be) the old service redress procedures.

116     

References by court to tribunal, etc.

(1)   

If it appears to a court in which proceedings are pending that a claim or

25

counter-claim relating to a non-discrimination rule could more conveniently

be determined by an employment tribunal, the court may strike out the claim

or counter-claim.

(2)   

If in proceedings before a court a question arises about a non-discrimination

rule, the court may (whether or not on an application by a party to the

30

proceedings)—

(a)   

refer the question, or direct that it be referred by a party to the

proceedings, to an employment tribunal for determination, and

(b)   

stay or sist the proceedings in the meantime.

84


 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

 
 

Clause 117: Time limits

Effect

386. This clause deals with time limits for cases in the employment tribunals. A person

must bring a claim within three months of the alleged conduct taking place. The exception to

that rule is a case involving an armed forces complaint, which must be brought within six

5

months. If a person wants to make a claim after that period it is at the tribunals’ discretion

whether they grant permission to allow them to do so. The test applied by the tribunals is what

is “just and equitable” in the circumstances. This test is used to decide whether to extend time

limits in other types of claims such as negligence personal injury claims and is used under the

current legislation.

10

387. Where the conduct in respect of which a claim under the Bill might arise continues

over a period of time, the time limit starts to run at the end of that period. Where it consists of

a failure to do something, the time limit starts to run when the person decides not to do the

thing in question. In the absence of evidence to the contrary, this is either when the person

does something which conflicts with doing the act in question; or at the end of the time when it

15

would have been reasonable for them to do the thing. This clause does not apply to a breach of

an equality clause or an equality rule, which are covered by clause 123 below.

Background

388. This clause is designed to replicate the effect of provisions in current legislation.

Clause 118: Remedies: general

20

Effect

389. This clause sets out the remedies available to employment tribunals hearing cases

under the Bill. It does not however apply to a breach of an equality clause or an equality rule,

which are dealt with in clauses 126, 127 and 128.

390. An employment tribunal can make a declaration regarding the rights of the

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complainant and/or the respondent; order compensation to be paid, including damages for

injury to feelings; and make an appropriate recommendation. The measure of compensation

is that which applies in tort claims, for example claims of negligence, which is to put the

claimant in the same position, as far as possible, as they would have been if the unlawful act

had not taken place.

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391. Where a tribunal makes a recommendation it does not have to be aimed only at

reducing the negative impact on the individual claimant(s) of the respondent’s actions which

gave rise to the successful claim, but can be aimed at reducing that impact on the wider

workforce. The recommendation must state that the respondent should take specific action

within a specified period of time. A tribunal has the power in any case where a

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recommendation made for the benefit of the individual claimant only is not complied with, to

award compensation or increase any award already made.

E85


 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

 
 

117     

Time limits

(1)   

Proceedings on a complaint within section 114 may not be brought after the

end of—

(a)   

the period of 3 months starting with the date of the act to which the

complaint relates, or

5

(b)   

such other period as the employment tribunal thinks just and equitable.

(2)   

Proceedings may not be brought in reliance on section 115(1) after the end of—

(a)   

the period of 6 months starting with the date of the act to which the

proceedings relate, or

(b)   

such other period as the employment tribunal thinks just and equitable.

10

(3)   

For the purposes of this section—

(a)   

conduct extending over a period is to be treated as done at the end of

the period;

(b)   

failure to do a thing is to be treated as occurring when the person in

question decided on it.

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(4)   

In the absence of evidence to the contrary, a person (P) is to be taken to decide

on failure to do a thing—

(a)   

when P does an act inconsistent with doing the thing, or

(b)   

if P does no inconsistent act, on the expiry of the period in which P

might reasonably have been expected to do the thing.

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118     

Remedies: general

(1)   

This section applies if an employment tribunal finds that there has been a

contravention of a provision referred to in section 114(1).

(2)   

The tribunal may—

(a)   

make a declaration as to the rights of the complainant and the

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respondent in relation to the matters to which the proceedings relate;

(b)   

order the respondent to pay compensation to the complainant;

(c)   

make an appropriate recommendation.

(3)   

An appropriate recommendation is a recommendation that within a specified

period the respondent takes specified steps for the purpose of obviating or

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reducing the adverse effect of any matter to which the proceedings relate—

(a)   

on the complainant;

(b)   

on any other person.

(4)   

Subsection (5) applies if the tribunal—

(a)   

finds that a contravention is established by virtue of section 18, but

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85


 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

 
 

392. In a case of indirect discrimination where the respondent proves that there was no

intention to treat the claimant unfavourably, a tribunal cannot award damages to a claimant

unless it has first considered making either a declaration or recommendation.

Background

393. This clause is designed generally to replicate the effect of provisions in current

5

legislation. However, under current legislation, employment tribunals can make a declaration,

order compensation to be paid and make recommendations. However, currently the

recommendations that they can make can only be for the benefit of the individual claimant(s).

The Bill will extend the recommendations power so that employment tribunals can make

recommendations which benefit persons other than the claimant.

10

Example

394. A tribunal could recommend that the respondent:

• introduces an equal opportunities policy;

• ensures its harassment policy is more effectively implemented;

• sets up a review panel to deal with equal opportunities and harassment/grievance

15

procedures;

• re-trains staff; or

• makes public the selection criteria used for transfer or promotion of staff.

Clause 119: Remedies: national security

Effect

20

395. This clause sets out the restrictions on the types of remedies available to an

employment tribunal in cases which have been designated as “national security proceedings”.

National security proceedings are those where an order has been made under various

provisions of the Employment Tribunals Act 1996 or regulations made under the Act.

396. In national security proceedings a recommendation must not be made for the benefit

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of the respondent’s wider workforce, if the recommendation would affect anything done by the

Security Service, the Secret Intelligence Service, Government Communications Headquarters

or the part of the armed forces which assist the Government Communications Headquarters.

In such cases the tribunal is limited to making recommendations for the benefit of the

individual claimant or claimants.

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Background

397. Because the Bill will extend the recommendations power to benefit persons other than

the claimant, this provision is necessary to ensure that such recommendations do not affect

national security.

E86


 
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