Equality Bill

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

(b)
is satisfied that the provision, criterion or practice was not applied with
the intention of discriminating against the complainant.
(5)
It must not make an order under subsection (2)(b) unless it first considers
whether to act under subsection (2)(a) or (c).
(6)
The amount of compensation which may be awarded under subsection (2)(b)
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corresponds to the amount which could be awarded by a county court or the
sheriff under section 113.
(7)
If a respondent fails, without reasonable excuse, to comply with an appropriate
recommendation in so far as it relates to the complainant, the tribunal may—
(a)
if an order was made under subsection (2)(b), increase the amount of
10
compensation to be paid;
(b)
if no such order was made, make one.
119
Remedies: national security
(1)
In national security proceedings, an appropriate recommendation (as defined
by section 118) must not be made in relation to a person other than the
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complainant if the recommendation would affect anything done by—
(a)
the Security Service,
(b)
the Secret Intelligence Service,
(c)
the Government Communications Headquarters, or
(d)
a part of the armed forces which is, in accordance with a requirement
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of the Secretary of State, assisting the Government Communications
Headquarters.
(2)
National security proceedings are—
(a)
proceedings to which a direction under section 10(3) of the
Employment Tribunals Act 1996 (national security) relates;
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(b)
proceedings to which an order under section 10(4) of that Act relates;
(c)
proceedings (or the part of proceedings) to which a direction pursuant
to regulations made under section 10(5) of that Act relates;
(d)
proceedings (or the part of proceedings) in relation to which an
employment tribunal acts pursuant to regulations made under section
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10(6) of that Act.
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Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

Clause 120: Remedies: occupational pension schemes
Effect
398. This clause sets out the additional remedies available to employment tribunals in cases
involving occupational pension schemes. These are cases in which the respondent is an
employer, or the trustee or manager of the pension scheme; and the complaint relates to the
5
terms on which membership is offered to a pension scheme or how members of an existing
scheme are treated. In these cases the tribunal can in addition to the remedies of declaration,
compensation and recommendation, also make a declaration about the terms on which a
person should be admitted as member to that scheme or a declaration about the rights of an
existing member of that scheme to not be discriminated against.
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399. However, a tribunal can award compensation only for injured feelings or for failure to
comply with a recommendation; it cannot compensate the claimant for loss caused by the
unlawful discrimination.
Background
400. This provision is designed to replicate the effect of provisions in current legislation.
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Chapter 4: Equality of terms
Clause 121: Jurisdiction
Effect
401. This clause sets out the types of cases relating to equality of terms which employment
tribunals have jurisdiction to hear. Tribunals may hear and decide claims (including those
20
referred to them by courts) involving equality in the rules of occupational pension schemes
and claims relating to an equality clause, including claims relating to pregnancy and maternity
equality.
402. A responsible person (as defined in clause 75, such as an employer, or a pension
scheme trustee or manager) can also ask a tribunal for a declaration of each party’s rights in
25
relation to a dispute or claim about an equality clause or rule.
403. Members of the armed forces must bring a complaint under service complaints
procedures before they can bring a claim to a tribunal.
404. This clause does not alter any jurisdiction the courts or the sheriff have in relation to
an equality clause or rule.
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Background
405. This clause is designed to replicate the effect of provisions in current legislation.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

120
Remedies: occupational pension schemes
(1)
This section applies if an employment tribunal finds that there has been a
contravention of a provision referred to in section 114(1) in relation to—
(a)
the terms on which persons become members of an occupational
pension scheme, or
5
(b)
the terms on which members of an occupational pension scheme are
treated.
(2)
In addition to anything which may be done by the tribunal under section 118
the tribunal may also by order declare—
(a)
if the complaint relates to the terms on which persons become members
10
of a scheme, that the complainant has a right to be admitted to the
scheme;
(b)
if the complaint relates to the terms on which members of the scheme
are treated, that the complainant has a right to membership of the
scheme without discrimination.
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(3)
The tribunal may not make an order under subsection (2)(b) of section 118
unless—
(a)
the compensation is for injured feelings, or
(b)
the order is made by virtue of subsection (7) of that section.
(4)
An order under subsection (2)—
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(a)
may make provision as to the terms on which or the capacity in which
the claimant is to enjoy the admission or membership;
(b)
may have effect in relation to a period before the order is made.
Chapter 4
Equality of terms
25
121
Jurisdiction
(1)
An employment tribunal has, subject to subsection (6), jurisdiction to
determine a complaint relating to a breach of an equality clause or rule.
(2)
The jurisdiction conferred by subsection (1) includes jurisdiction to determine
a complaint arising out of a breach of an equality clause or rule; and a reference
30
in this Chapter to a complaint relating to such a breach is to be read
accordingly.
(3)
An employment tribunal also has jurisdiction to determine an application by a
responsible person for a declaration as to the rights of that person and a worker
in relation to a dispute about the effect of an equality clause or rule.
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(4)
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
of an equality rule.
(5)
An employment tribunal also has jurisdiction to determine a question that—
40
(a)
relates to an equality clause or rule, and
(b)
is referred to the tribunal by virtue of section 122(2).
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Example
• An employment tribunal can hear claims brought by an employee, office holder or
member of the armed forces in relation to a breach of an equality clause and in relation
to breach of an equality rule in relation to a pension scheme.
Clause 122: References by court to tribunal, etc.
5
Effect
406. The Bill does not prevent the civil courts from considering a contractual claim relating
to an equality clause or rule or a non-discrimination rule. However, this clause gives a court
the power to strike out such a claim if it would be more convenient for a tribunal to deal with
it, or to refer an issue relating to such a claim to an employment tribunal.
10
Background
407. Employment tribunals have the specialist knowledge and procedures to handle claims
relating to equality of terms and this clause gives a court power to refer such issues to a
tribunal. This clause replaces similar provisions in current legislation.
Example
15
• An employer sues an employee in a civil court for breach of her employment contract.
In response, the employee counterclaims for breach of an equality clause. The court
decides to refer the counterclaim to an employment tribunal and postpones the case
until the tribunal’s decision.
Clause 123: Time limits
20
Effect
408. A person, who wishes to bring a claim for breach of an equality clause or rule, or to
apply for a declaration about the effect of such a clause or rule, must normally do so within six
months of the end of the employment contract. In certain circumstances, this clause gives a
claimant more time to make a claim. This applies where the employer conceals certain
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information from the claimant or where the claimant is under an incapacity (as defined in
clause 135). Members of the armed forces have an additional three months in which to bring a
claim because they must first make a complaint under the service complaint procedures.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

(6)
This section 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.
(7)
Subsections (2) to (5) of section 115 apply for the purposes of subsection (6) of
5
this section as they apply for the purposes of subsection (1) of that section.
(8)
In proceedings before an employment tribunal on a complaint relating to a
breach of an equality rule, the employer—
(a)
is to be treated as a party, and
(b)
is accordingly entitled to appear and be heard.
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(9)
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 an equality clause or
rule.
122
References by court to tribunal, etc.
(1)
If it appears to a court in which proceedings are pending that a claim or
15
counter-claim relating to an equality clause or 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 an equality clause or
rule, the court may (whether or not on an application by a party to the
20
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.
123
Time limits
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(1)
This section applies to—
(a)
a complaint relating to a breach of an equality clause or rule, or
(b)
an application for a declaration referred to in section 121(3) or (4).
(2)
Proceedings on the complaint or application may not be brought in an
employment tribunal after the end of the qualifying period.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Background
409. This provision replaces similar provisions in current legislation. Time limits provide
certainty by requiring claims to be brought within specified periods and also take into account
factors which may affect a claimant’s ability to assert his or her claim.
Example
5
• A former member of the armed forces wishes to bring a claim about her terms of
service. She first makes a service complaint and then brings a claim for breach of an
equality clause in an employment tribunal. The claim for breach of an equality clause
must be brought in an employment tribunal within nine months after her period of
service ended.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

(3)
If the complaint or application relates to terms of work other than terms of
service in the armed forces, the qualifying period is, in a case mentioned in the
first column of the table, the period mentioned in the second column.

Case
Qualifying period

A standard case
The period of 6 months beginning with the last

5

day of the employment or appointment.

A stable work case (but not if
The period of 6 months beginning with the day

it is also a concealment or
on which the stable working relationship

incapacity case (or both))
ended.

A concealment case (but not if
The period of 6 months beginning with the day

10

it is also an incapacity case)
on which the worker discovered (or could with

reasonable diligence have discovered) the

qualifying fact.

An incapacity case (but not if
The period of 6 months beginning with the day

it is also a concealment case)
on which the worker ceased to have the

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incapacity.

A case which is a concealment
The period of 6 months beginning with the

and incapacity case.
later of the days on which the period would

begin if the case were merely a concealment or

incapacity case.

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(4)
If the complaint or application relates to terms of service in the armed forces,
the qualifying period is, in a case mentioned in the first column of the table, the
period mentioned in the second column.

Case
Qualifying period

A standard case
The period of 9 months beginning with the last

25

day of the period of service during which the

complaint arose.

A concealment case (but not if
The period of 9 months beginning with the day

it is also an incapacity case)
on which the worker discovered (or could with

reasonable diligence have discovered) the

30

qualifying fact.

An incapacity case (but not if
The period of 9 months beginning with the day

it is also a concealment case)
on which the worker ceased to have the

incapacity.

A case which is a concealment
The period of 9 months beginning with the

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and incapacity case.
later of the days on which the period would

begin if the case were merely a concealment or

incapacity case.

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