Equality Bill

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Equality Bill

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

(4)
If the breach relates to a term on which persons become members of the
scheme, the court or tribunal may declare that the complainant is entitled to be
admitted to the scheme with effect from a specified date.
(5)
A date specified for the purposes of subsection (4) must not be before 8 April
1976.
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(6)
If the breach relates to a term on which members of the scheme are treated, the
court or tribunal may declare that the complainant is, in respect of a specified
period, entitled to secure the rights that would have accrued if the breach had
not occurred.
(7)
A period specified for the purposes of subsection (6) must not begin before 17
10
May 1990.
(8)
If the court or tribunal makes a declaration under subsection (6), the employer
must provide such resources to the scheme as are necessary to secure for the
complainant (without contribution or further contribution by the complainant
or other members) the rights referred to in that subsection.
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128
Remedies in claims for arrears brought by pensioner members
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint by a pensioner member of an occupational pension scheme
relating to a breach of an equality clause or rule with respect to a term on which
the member is treated.
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(2)
If the court or tribunal finds that there has been a breach referred to in
subsection (1), it may—
(a)
make a declaration as to the rights of the complainant and the
respondent in relation to the matters to which the proceedings relate;
(b)
order an award by way of arrears of benefits or damages or of any other
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amount in relation to the complainant.
(3)
The court or tribunal must not order an award under subsection (2)(b) in
respect of a time before the arrears day.
(4)
If the court or tribunal orders an award under subsection (2)(b), the employer
must provide such resources to the scheme as are necessary to secure for the
30
complainant (without contribution or further contribution by the complainant
or other members) the amount of the award.
(5)
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 commenced.

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).

(6)
In relation to proceedings in Scotland, the arrears day is the first day of—
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Clause 129: Supplementary
Effect
429. The amount an employment tribunal can award a successful claimant is affected by
how far back in time it can go in making its calculation. The type of case before the tribunal
determines this period. This clause defines the different types of cases.
5
Background
430. This clause replicates the effect of similar provisions in current legislation.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

(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,
the period of 20 years ending with that day.
129
Supplementary
5
(1)
This section applies for the purposes of sections 126 to 128.
(2)
A standard case is a case which is not—
(a)
a concealment case,
(b)
an incapacity case, or
(c)
a concealment case and an incapacity case.
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(3)
A concealment case in relation to an equality clause is a case where—
(a)
the responsible person deliberately concealed a qualifying fact (as
defined by section 124) from the worker, and
(b)
the worker commenced the proceedings before the end of the period of
6 years beginning with the day on which the worker discovered (or
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could with reasonable diligence have discovered) the qualifying fact.
(4)
A concealment case in relation 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 (as defined
by section 124) from the member, and
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(b)
the member commenced the proceedings before the end of the period
of 6 years beginning with the day on which the member discovered (or
could with reasonable diligence have discovered) the qualifying fact.
(5)
An incapacity case is a case where the worker or member—
(a)
had an incapacity when the breach first occurred, and
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(b)
commenced the proceedings before the end of the period of 6 years
beginning with the day on which the worker or member ceased to have
the incapacity.
(6)
A case involves a relevant incapacity or a relevant fraud or error if the period
of 5 years referred to in section 126(5)(a) is, as a result of subsection (7) below,
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reckoned as a period of more than 20 years.
(7)
For the purposes of the reckoning referred to in subsection (6), no account is to
be taken of time when the worker or member—
(a)
had an incapacity, or
(b)
was induced by a relevant fraud or error to refrain from commencing
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proceedings (not being a time after the worker or member could with
reasonable diligence have discovered the fraud or error).
(8)
For the purposes of subsection (7)—
(a)
a fraud is relevant in relation to an equality clause if it is a fraud on the
part of the responsible person;
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(b)
an error is relevant in relation to an equality clause if it is induced by
the words or conduct of the responsible person;
(c)
a fraud is relevant in relation to an equality rule if it is a fraud on the
part of the employer or the trustees or managers of the scheme;
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

Chapter 5: Miscellaneous
Clause 130: Burden of proof
Effect
431. This clause provides that, in any claim where a person alleges discrimination,
harassment or victimisation under the Bill, the burden of proving their case starts with the
5
claimant. Once the claimant has established sufficient facts to point to a breach having
occurred, in the absence of any other explanation, the burden shifts onto the respondent to
show that he or she did not breach the provisions of the Bill. The exception to this rule is if the
proceedings relate to a criminal offence.
Background
10
432. Under current legislation, in most cases the burden of proof is reversed once the
claimant has established a case to an initial level. However, the burden of proof is currently not
reversed in race discrimination claims brought on grounds of colour and nationality; claims of
victimisation which relate to race discrimination; non-work disability discrimination claims;
and sex discrimination claims which relate to the exercise of public functions. In these areas
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the burden of proof will now be reversed once the claimant establishes his or her case to an
initial level.
Example
• A man of Chinese ethnic origin applies for a promotion at work but is not given an
interview for the job. He finds that a number of white colleagues were given
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interviews despite having less experience and fewer qualifications. He brings a case
for race discrimination before the employment tribunal and provides sufficient
evidence to show that he had been treated less favourably because of his ethnic origin.
It would then be up to his employer to prove that she had not discriminated against him
in the promotion process.
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

(d)
an error is relevant in relation to an equality rule if it is induced by the
words or conduct of the employer or the trustees or managers of the
scheme.
(9)
A reference in subsection (8) to the responsible person, the employer or the
trustees or managers includes a reference to a person acting on behalf of the
5
person or persons concerned.
(10)
In relation to terms of service, a reference in section 126(5) or subsection (3) or
(5)(b) of this section to commencing proceedings is a reference to making a
service complaint.
(11)
A reference to a pensioner member of a scheme includes a reference to a person
10
who is entitled to the present payment of pension or other benefits derived
through a member.
(12)
In relation to proceedings before a court—
(a)
a reference to a complaint is to be read as a reference to a claim, and
(b)
a reference to a complainant is to be read as a reference to a claimant.
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Chapter 5
Miscellaneous
130
Burden of proof
(1)
This section applies to any proceedings relating to a contravention of this Act.
(2)
If there are facts from which the court could decide, in the absence of any other
20
explanation, that a person (A) contravened the provision concerned, the court
must hold that the contravention occurred.
(3)
But subsection (2) does not apply if A shows that A did not contravene the
provision.
(4)
The reference to a contravention of this Act includes a reference to a breach of
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an equality clause or rule.
(5)
This section does not apply to proceedings for an offence.
(6)
A reference to the court includes a reference to—
(a)
an employment tribunal;
(b)
the Asylum and Immigration Tribunal;
30
(c)
the Special Immigration Appeals Commission;
(d)
the First-tier Tribunal;
(e)
the Special Educational Needs Tribunal for Wales;
(f)
an Additional Support Needs Tribunal for Scotland.
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

Clause 131: Previous findings
Effect
433. This clause provides, that if a person has brought a case under any of the current
legislation which this Bill will replace which is listed in this clause, and a finding by a tribunal
or court has been finalised, the issues decided in that case cannot be re-opened and litigated
5
again under the provisions in this Bill.
Background
434. This provision is necessary because the Bill is re-enacting many of the provisions in
the legislation listed at subsection (2). This re-enactment should not provide a way to re-open
issues before the courts which have been decided in proceedings under the existing legislation.
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Clause 132: Obtaining information etc.
Effect
435. This clause provides a mechanism for a person who thinks that he or she may have
been unlawfully discriminated against, harassed or victimised to obtain information from the
15
person they think has acted unlawfully against them (that is to say, the potential respondent or
defendant). The person may ask questions either on a form prescribed by order by a Minister
of the Crown or in some other form.
436. The questions and the answers are admissible as evidence in a case brought under the
Bill and the court or tribunal may draw inferences from a failure by the respondent to answer
20
the questions posed within eight weeks or from evasive or equivocal answers.
437. However the court or tribunal cannot draw such adverse inferences in certain specified
circumstances. These are if the respondent says that to answer differently would have
prejudiced criminal proceedings or revealed the reason for criminal proceedings being
withdrawn or not being brought and this is reasonable. The clause contains a power for a
25
Minister of the Crown to specify by order additional circumstances where the adverse
inferences would not apply.
Background
438. This provision is designed to replicate the effect of provisions in current legislation.
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Part 9 — Enforcement
Chapter 5 — Miscellaneous

131
Previous findings
(1)
A finding in relevant proceedings in respect of an act which has become final
is to be treated as conclusive in proceedings under this Act.
(2)
Relevant proceedings are proceedings before a court or employment tribunal
under any of the following—
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(a)
section 19 or 20 of the Race Relations Act 1968;
(b)
the Equal Pay Act 1970;
(c)
the Sex Discrimination Act 1975;
(d)
the Race Relations Act 1976;
(e)
section 6(4A) of the Sex Discrimination Act 1986;
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(f)
the Disability Discrimination Act 1995;
(g)
Part 2 of the Equality Act 2006;
(h)
the Employment Equality (Religion and Belief) Regulations 2003 (S.I.
2003/1660);
(i)
the Employment Equality (Sexual Orientation) Regulations 2003 (S.I.
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2003/1661);
(j)
the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031);
(k)
the Equality Act (Sexual Orientation) Regulations 2007 (S.I. 2007/1263).
(3)
A finding becomes final—
(a)
when an appeal against the finding is dismissed, withdrawn or
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abandoned, or
(b)
when the time for appealing expires without an appeal having been
brought.
132
Obtaining information etc.
(1)
In this section—
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(a)
P is a person who thinks that a contravention of this Act has occurred
in relation to P;
(b)
R is a person who P thinks has contravened this Act.
(2)
A Minister of the Crown must by order prescribe—
(a)
forms by which P may question R on any matter which is or may be
30
relevant;
(b)
forms by which R may answer questions by P.
(3)
A question by P or an answer by R is admissible as evidence in proceedings
under this Act (whether or not the question or answer is contained in a
prescribed form).
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(4)
A court or tribunal may draw an inference from—
(a)
a failure by R to answer a question by P before the end of the period of
8 weeks beginning with the day on which the question is served;
(b)
an evasive or equivocal answer.
(5)
Subsection (4) does not apply if—
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(a)
R reasonably asserts that to have answered differently or at all might
have prejudiced a criminal matter;
(b)
R reasonably asserts that to have answered differently or at all would
have revealed the reason for not commencing or not continuing
criminal proceedings;
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