Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Clause 124: Section 123: supplementary
Effect
410. Under clause 123, the time limit for bringing a claim for breach of an equality clause
is six months (nine months for members of the armed forces) from the date on which
employment ended in a standard case. Different time limits apply to non-standard cases. This
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clause defines what is not a standard case.
411. In a stable work case, a series of fixed or short term contracts and breaks between
contracts is treated as a continuing single contract. In a standard case, the time limit would
start at the end of the contract of employment. In a stable work case, the time limit only begins
to run when the stable working relationship ends.
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412. In a concealment case, the employer deliberately conceals relevant information from
the employee. The time limit starts to run when the employee discovers, or could reasonably
have discovered, the information.
413. In an incapacity case, the appropriate time limit will start to run when the incapacity
ends. Clause 135 sets out when a person has an incapacity.
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414. The clause makes similar provisions for claims by members of the armed forces and in
relation to occupational pension schemes.
Background
415. This provision replaces similar provisions in the current legislation.
Examples
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• A woman’s employment ends due to mental health problems which result in her
temporary loss of capacity to make decisions for herself. She could make a claim for
breach of an equality clause to an employment tribunal but is not well enough to do so.
The six month time limit will start when she recovers sufficiently to make a claim.
• A woman suspects that her male colleagues who do the same work are better paid. Her
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employer reassures her that she and her colleagues get the same salary but he
deliberately does not tell her that the men also receive performance bonuses under
their contracts. Her male colleagues refuse to discuss their pay with her. The woman
only discovers the discrepancy between her pay and the men’s when one of the men
tells her 18 months after she ceases employment. Within six months, she makes an
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equal pay claim to a tribunal based on the value of the bonus payments she would have
received if her contract had provided for them. Although the woman’s claim is made
more than six months after her employment ends, she shows that her employer
deliberately misled her into believing her salary was the same as the men’s. She had no
way of discovering the truth earlier. Her claim can proceed as a concealment case.
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Part 9 — Enforcement
Chapter 4 — Equality of terms

124
Section 123: supplementary
(1)
This section applies for the purposes of section 123.
(2)
A standard case is a case which is not—
(a)
a stable work case,
(b)
a concealment case,
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(c)
an incapacity case, or
(d)
a concealment case and an incapacity case.
(3)
A stable work case is a case where the proceedings relate to a period during
which there was a stable working relationship between the worker and the
responsible person (including any time after the terms of work had expired).
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(4)
A concealment case in proceedings relating to an equality clause is a case
where—
(a)
the responsible person deliberately concealed a qualifying fact from the
worker, and
(b)
the worker did not discover (or could not with reasonable diligence
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have discovered) the qualifying fact until after the relevant day.
(5)
A concealment case in proceedings relating to an equality rule is a case
where—
(a)
the employer or the trustees or managers of the occupational pension
scheme in question deliberately concealed a qualifying fact from the
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member, and
(b)
the member did not discover (or could not with reasonable diligence
have discovered) the qualifying fact until after the relevant day.
(6)
A qualifying fact for the purposes of subsection (4) or (5) is a fact—
(a)
which is relevant to the complaint, and
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(b)
without knowledge of which the worker or member could not
reasonably have been expected to bring the proceedings.
(7)
An incapacity case in proceedings relating to an equality clause with respect to
terms of work other than terms of service in the armed forces is a case where
the worker had an incapacity during the period of 6 months beginning with the
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later of—
(a)
the relevant day, or
(b)
the day on which the worker discovered (or could with reasonable
diligence have discovered) the qualifying fact deliberately concealed
from the worker by the responsible person.
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(8)
An incapacity case in proceedings relating to an equality clause with respect to
terms of service in the armed forces is a case where the worker had an
incapacity during the period of 9 months beginning with the later of—
(a)
the last day of the period of service during which the complaint arose,
or
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(b)
the day on which the worker discovered (or could with reasonable
diligence have discovered) the qualifying fact deliberately concealed
from the worker by the responsible person.
(9)
An incapacity case in proceedings relating to an equality rule is a case where
the member of the occupational pension scheme in question had an incapacity
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during the period of 6 months beginning with the later of—
(a)
the relevant day, or
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Clause 125: Assessment of whether work is of equal value
Effect
416. Where an employment tribunal has to decide if the work of a claimant and comparator
are of equal value, this clause gives it the power to require an independent expert, designated
by the Advisory, Conciliation and Arbitration Service to prepare a report on the matter.
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417. Unless the tribunal withdraws its request for a report (in which case it can ask the
expert to give it any documents or other information the expert has to help it make a decision)
it must wait for the expert’s report before deciding whether the work is of equal value.
418. If there has been a job evaluation study in relation to the work involved and the study
finds that the claimant’s work is not of equal value to the work of the comparator, the tribunal
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is required to come to the same decision unless it has a good reason to suspect that the study is
discriminatory or unreliable.
Background
419. This provision replaces similar provisions in current legislation.
Example
15
• A woman claims that her job is of equal value to that of a male comparator. The
employer produces a job evaluation study to the tribunal in which the woman’s job is
rated below her comparator’s job. The employer asks the tribunal to dismiss the
woman’s claim but the woman is able to show that the study is unreliable because it is
out of date and does not take account of changes in the jobs resulting from new
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technology. The tribunal can disregard the study’s conclusion and can proceed to
decide if the work of the claimant and comparator are of equal value.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

(b)
the day on which the member discovered (or could with reasonable
diligence have discovered) the qualifying fact deliberately concealed
from the member by the employer or the trustees or managers of the
scheme.
(10)
The relevant day for the purposes of this section is—
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(a)
the last day of the employment or appointment, or
(b)
the day on which the stable working relationship between the worker
and the responsible person ended.
125
Assessment of whether work is of equal value
(1)
This section applies to proceedings before an employment tribunal on—
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(a)
a complaint relating to a breach of an equality clause or rule, or
(b)
a question referred to the tribunal by virtue of section 122(2).
(2)
Where a question arises in the proceedings as to whether one person’s work is
of equal value to another’s, the tribunal may, before determining the question,
require a member of the panel of independent experts to prepare a report on
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the question.
(3)
The tribunal may withdraw a requirement that it makes under subsection (2);
and, if it does so, it may—
(a)
request the panel member to provide it with specified documentation;
(b)
make such other requests to that member as are connected with the
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withdrawal of the requirement.
(4)
If the tribunal requires the preparation of a report under subsection (2) (and
does not withdraw the requirement), it must not determine the question unless
it has received the report.
(5)
Subsection (6) applies where—
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(a)
a question arises in the proceedings as to whether the work of one
person (A) is of equal value to the work of another (B), and
(b)
A’s work and B’s work have been given different values by a job
evaluation study.
(6)
The tribunal must determine that A’s work is not of equal value to B’s work
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unless it has reasonable grounds for suspecting that the evaluation contained
in the study—
(a)
was based on a system that discriminates because of sex, or
(b)
is otherwise unreliable.
(7)
For the purposes of subsection (6)(a), a system discriminates because of sex if
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a difference (or coincidence) between values that the system sets on different
demands is not justifiable regardless of the sex of the person on whom the
demands are made.
(8)
A reference to a member of the panel of independent experts is to a person—
(a)
who is for the time being designated as such by the Advisory,
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Conciliation and Arbitration Service (ACAS) for the purposes of this
section, and
(b)
who is neither a member of the Council of ACAS nor one of its officers
or members of staff.
(9)
“Job evaluation study” has the meaning given in section 75(5).
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Clause 126: Remedies in non-pensions cases
Effect
420. If a claim for breach of an equality clause (other than in relation to a pension scheme)
succeeds, the court or employment tribunal can make a declaration clarifying what the rights
of the parties to the claim are.
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421. The court or tribunal can also order the employer to pay the claimant arrears of pay or
damages. The period used for calculating arrears depends on the type of case. There are
different periods for claims brought in England and Wales and in Scotland. The basic period in
relation to England and Wales is six years from the date a claim is made. In relation to
Scotland, the period is five years. Special provision is made for claims involving concealment
10
and/or incapacity (as set out in clause 129).
Background
422. This provision replaces similar provisions in current legislation.
Example
• A woman successfully establishes that her work is the same as her male comparator’s
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and that in addition to a discrepancy between her pay and that of her male colleague,
she has been denied access to the benefit of a company car. The claimant is entitled to
claim the difference in pay going back up to six years from the date of the claim. She is
also entitled to monetary compensation for not having had the use of a company car.
Clause 127: Remedies in pensions cases
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Effect
423. This clause allows an employment tribunal to declare that in cases where equality rule
or equality clause has been breached in relation to:
• scheme membership, the complainant is entitled to be admitted to the scheme from a
date specified by the tribunal, although the date cannot be earlier than 8 April 1976;
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• scheme rights, the complainant is entitled to have any rights which would have
accrued under the scheme secured from a date specified by the tribunal, although the
date cannot be earlier than 17 May 1990.
424. However, the clause prevents a tribunal ordering an award of compensation to the
complainant.
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126
Remedies in non-pensions cases
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint relating to a breach of an equality clause, other than a breach with
respect to membership of or rights under an occupational pension scheme.
(2)
If the court or tribunal finds that there has been a breach of the equality clause,
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it may—
(a)
make a declaration as to the rights of the parties in relation to the
matters to which the proceedings relate;
(b)
order an award by way of arrears of pay or damages in relation to the
complainant.
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(3)
The court or tribunal may not order a payment under subsection (2)(b) in
respect of a time before the arrears day.
(4)
In relation to proceedings in England and Wales, the arrears day is, in a case
mentioned in the first column of the table, the day mentioned in the second
column.
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Case
Arrears day

A standard case
The day falling 6 years before the day on

which the proceedings were instituted.

A concealment case or an
The day on which the breach first

incapacity case (or a case
occurred.

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which is both).

(5)
In relation to proceedings in Scotland, the arrears day is the first day of—
(a)
the period of 5 years ending with the day on which the proceedings
were commenced, or
(b)
if the case involves a relevant incapacity, or a relevant fraud or error,
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the period of 20 years ending with that day.
127
Remedies in pensions cases
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint relating to—
(a)
a breach of an equality rule, or
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(b)
a breach of an equality clause with respect to membership of, or rights
under, an occupational pension scheme.
(2)
If the court or tribunal finds that there has been a breach as referred to in
subsection (1)—
(a)
it may make a declaration as to the rights of the parties in relation to the
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matters to which the proceedings relate;
(b)
it must not order arrears of benefits or damages or any other amount to
be paid to the complainant.
(3)
Subsection (2)(b) does not apply if the proceedings are proceedings to which
section 128 applies.
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Equality Bill
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Chapter 4 — Equality of terms

Background
425. This clause replicates requirements in the Equal Pay Act 1970, as modified by the
Occupational Pension Schemes (Equal Treatment) Regulations 1995.
426. The restrictions on dates derive from judgments of the European Court:
• for scheme membership: 8 April 1976, the date of the Court’s judgment in Defrenne v
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Sabena. The Court, in holding that the principle of equal pay was directly effective,
held that Article 141 (formerly Article 119) of the Treaty of Rome should not be
applied to periods of service before the judgment.
• for scheme rights: 17 May 1990, the date of the Court’s judgment in Barber v
Guardian Royal Exchange Insurance Group, which established that occupational
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pensions were equal pay for the purposes of Article 119 of the Treaty of Rome.
Clause 128: Remedies in claims for arrears brought by pensioner members
Effect
427. This clause allows a court or an employment tribunal to require compensation to be
paid to a pensioner member for a breach of an equality clause or rule in relation to an
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occupational pension scheme and sets out the period for which arrears may be awarded for
different types of cases. In a standard case in England and Wales, the period is six years before
the date when a claim is made. Different periods apply to cases brought in England and Wales
and to cases brought in Scotland. Special provision is made for claims involving concealment
and/or incapacity (as set out in clause 129).
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Background
428. This clause replicates requirements in the Equal Pay Act 1970, as modified by the
Occupational Pension Schemes (Equal Treatment) Regulations 1995.
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