Equality Bill

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

Clause 133: Interest
Effect
439. This clause enables a Minister of the Crown to make regulations enabling an
employment tribunal to add interest payments to any award of compensation made to a
claimant as a result of a discrimination case brought under this Bill. The regulations can set
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out how the tribunal should calculate how much interest should be paid.
440. The regulations may provide that interest is to be calculated in a different way in
discrimination proceedings from how it is in other cases before the employment tribunals, so
they can modify the effect of an order made under the Employment Tribunals Act 1996 about
interest calculations which applies to employment cases more generally.
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Background
441. This replicates powers contained in current legislation.
Example
• A claimant is awarded compensation for being discriminated against by his employer.
Regulations made under this clause may provide that if the award is not settled by the
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respondent within 14 days of the employment tribunal’s decision then interest is to
accrue on this award. The current regulations specify that the rate of interest applied to
unpaid awards is fixed at 8%. A different rate can be applied if this is provided in
regulations.
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

(c)
R’s answer is of a kind specified for the purposes of this paragraph by
order of a Minister of the Crown;
(d)
R’s answer is given in circumstances specified for the purposes of this
paragraph by order of a Minister of the Crown;
(e)
R’s failure to answer occurs in circumstances specified for the purposes
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of this paragraph by order of a Minister of the Crown.
(6)
The reference to a contravention of this Act includes a reference to a breach of
an equality clause or rule.
(7)
A Minister of the Crown may by order—
(a)
prescribe the period within which a question must be served to be
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admissible under subsection (3);
(b)
prescribe the manner in which a question by P, or an answer by R, may
be served.
(8)
This section—
(a)
does not affect any other enactment or rule of law relating to interim or
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preliminary matters in proceedings before a county court, sheriff or
employment tribunal, and
(b)
has effect subject to any enactment or rule of law regulating the
admissibility of evidence in such proceedings.
133
Interest
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(1)
A Minister of the Crown may by regulations make provision—
(a)
for enabling an employment tribunal to include interest on an amount
awarded by it in proceedings under this Act;
(b)
specifying the manner in which, and the periods and rate by reference
to which, the interest is to be determined.
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(2)
A Minister of the Crown may by regulations modify the operation of an order
made under section 14 of the Employment Tribunals Act 1996 (power to make
provision as to interest on awards) in so far as it relates to an award in
proceedings under this Act.
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

Clause 134: Conduct giving rise to separate proceedings
Effect
442. This clause enables an employment tribunal to transfer a case to a county or sheriff
court, or a court to transfer a case to an employment tribunal, if it is based on the same conduct
as one or more separate cases and one of the claims relates to instructing, causing or inducing
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a person to discriminate against, harass or victimise another person. It also provides that an
employment tribunal or court cannot make a decision about such a case which is inconsistent
with an earlier decision about the same conduct.
Background
443. This is a new provision which will allow for the transfer of certain types of connected
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cases between the tribunals and courts.
Example
• An employer instructs an employee to discriminate against a customer. The customer
brings a case against the employer or an employee in a county court. The employee
brings a case against the employer in an employment tribunal. These claims both arise
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out of the same conduct and so the court and the tribunal can transfer one set of
proceedings so that they can be dealt with together as this is a better way of managing
the cases.
Clause 135: Interpretation, etc.
Effect
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444. This clause explains the meaning of various terms used in this Part.
Part 10: Contracts, ETc.
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Chapter 5 — Miscellaneous

134
Conduct giving rise to separate proceedings
(1)
This section applies in relation to conduct which has given rise to two or more
separate proceedings under this Act, with at least one being for a contravention
of section 105.
(2)
A court may transfer proceedings to an employment tribunal.
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(3)
An employment tribunal may transfer proceedings to a court.
(4)
A court or employment tribunal is to be taken for the purposes of this Part to
have jurisdiction to determine a claim or complaint transferred to it under this
section; accordingly—
(a)
a reference to a claim within section 108(1) includes a reference to a
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claim transferred to a court under this section;
(b)
a reference to a complaint within section 114(1) includes a reference to
a complaint transferred to an employment tribunal under this section.
(5)
A court or employment tribunal may not make a decision that is inconsistent
with an earlier decision in proceedings arising out of the conduct.
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(6)
“Court” means—
(a)
in relation to proceedings in England and Wales, a county court;
(b)
in relation to proceedings in Scotland, the sheriff.
135
Interpretation, etc.
(1)
This section applies for the purposes of this Part.
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(2)
A reference to the responsible person, in relation to an equality clause or rule,
is to be construed in accordance with Chapter 3 of Part 5.
(3)
A reference to a worker is a reference to the person to the terms of whose work
the proceedings in question relate; and, for the purposes of proceedings
relating to an equality rule or a non-discrimination rule, a reference to a worker
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includes a reference to a member of the occupational pension scheme in
question.
(4)
A reference to the terms of a person’s work is to be construed in accordance
with Chapter 3 of Part 5.
(5)
A reference to a member of an occupational pension scheme includes a
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reference to a prospective member.
(6)
In relation to proceedings in England and Wales, a person has an incapacity if
the person—
(a)
has not attained the age of 18, or
(b)
lacks capacity (within the meaning of the Mental Capacity Act 2005).
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

Clause 136: Unenforceable terms
Effect
445. This clause makes terms of contracts which discriminate against a person or would
otherwise lead to conduct prohibited by the Bill unenforceable in that respect. But a person
who would have been disadvantaged by any such term will still be able to rely on it so as to
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obtain any benefit to which it entitles him.
446. For disability alone, this clause also applies to terms of non-contractual agreements
relating to the provision of employment services (within clause 53(2)(a) to (e))] or group
insurance arrangements for employees. These terms are referred to in the clause as “relevant
non-contractual terms”.
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447. This clause does not apply to a term of contract modified by an equality clause under
Part 5, Chapter 3, because once the term is modified it is no longer discriminatory. Nor, as a
result of clause 142, does it deal with contractual terms which may breach the public sector
equality duty (Part 11) or the public sector duty regarding socio-economic inequalities (Part
1), to which different enforcement mechanisms apply.
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448. Background
448. The clause replaces provisions in current legislation which have a similar effect, and
maintains the specific protection for certain non-contractual provisions currently given in the
Disability Discrimination Act 1995.
449. Example
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• A term in a franchise agreement which included a requirement that the franchisee
should only employ Asian people could not be enforced by the franchisor unless he
could objectively justify it (unless an exception applies). But the franchisee could still
obtain any benefit he is due under the term, for example he could continue operating
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Part 10 — Contracts, etc.

(7)
In relation to proceedings in Scotland, a person has an incapacity if the
person—
(a)
has not attained the age of 16, or
(b)
is incapable (within the meaning of the Adults with Incapacity
(Scotland) Act 2000).
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(8)
“Service complaint” means a complaint under section 334 of the Armed Forces
Act 2006; and “service complaint procedures” means the procedures
prescribed by regulations under that section (except in so far as relating to
references under section 337 of that Act)
(9)
“Criminal matter” means—
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(a)
an investigation into the commission of an alleged offence;
(b)
a decision whether to commence criminal proceedings;
(c)
criminal proceedings.
Part 10
Contracts, etc.
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Contracts and other agreements
136
Unenforceable terms
(1)
A term of a contract is unenforceable against a person in so far as it constitutes,
promotes or provides for treatment of that or another person that is of a
description prohibited by this Act.
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(2)
A relevant non-contractual term is unenforceable against a person in so far as
it constitutes, promotes or provides for treatment of that or another person that
is of a description prohibited by this Act, in so far as this Act relates to
disability.
(3)
A relevant non-contractual term is a term which—
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(a)
is a term of an agreement that is not a contract, and
(b)
relates to the provision of an employment service within section
53(2)(a) to (e) or to the provision under a group insurance arrangement
of facilities by way of insurance.
(4)
A reference in subsection (1) or (2) to treatment of a description prohibited by
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this Act does not include—
(a)
a reference to the inclusion of a term in a contract referred to in section
65(2)(a) or 71(2), or
(b)
a reference to the failure to include a term in a contract as referred to in
section 65(2)(b).
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(5)
Subsection (4) does not affect the application of section 142(2) to this section.
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Part 10 — Contracts, etc.

the franchise. However, if the franchisee complied with the discriminatory term, a
person discriminated against under it could make a claim against the franchisee for
unlawful discrimination under other provisions in the Bill.
Clause 137: Removal or modification of unenforceable terms
Effect
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449. This clause allows a county court (or a sheriff court in Scotland) to modify or remove
a contractual (or relevant non-contractual) term which is made unenforceable under clause
136, when asked to do so by a person who has an interest in the contract (which includes
anyone affected by it). The court may also decide that the term is to be treated as having been
removed or modified during the period prior to the making of the order.
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450. The court must first ensure that anyone who would be affected has been told of the
proceedings and given an opportunity to make their views known. Rules of court determine
what the court must do to meet this obligation.
Background
451. This clause replaces similar provisions in current legislation.
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Example
• A person renting an office in a serviced office block could ask for a term in the rental
contract to be amended if the term discriminated indirectly, for example by including
an unjustified requirement that people entering the premises remove any facial
covering (thus discriminating against Muslim women). The term could be adjusted by
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the court or sheriff to allow special arrangements to be made to satisfy both genuine
security needs of other users and the religious needs of Muslim women visiting the
claimant.
Clause 138: Contracting out
Effect
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452. Under this clause, contractual and relevant non-contractual terms which try to exclude
or limit the operation of any provision in the Bill (which includes those dealing with equality
of terms) are unenforceable by the person in whose favour the term operates. There are
exceptions to this to allow negotiated settlement of claims in the following circumstances:
• a contract settling a claim in an employment tribunal (including an agreement settling
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a claim for a breach of an equality clause) that has been negotiated with the help of a
conciliation officer or which meets the standards set out in clause 141 (meaning of
qualifying contracts). This includes an arbitration agreement made in accordance with
a scheme under section 212A of the Trade Union and Labour Relations
(Consolidation) Act 1992 (where the parties agree to submit a dispute to arbitration).
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• a contract settling a county or sheriff court claim;
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