House of Commons portcullis
House of Commons
Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill


 

Equality Bill
Part 10 — Contracts, etc.

 
 

Clause 142: Interpretation

Effect

465. This clause explains what is meant by various terms used in this Part of the Bill, or

applies definitions provided elsewhere. These are referred to in the notes on earlier clauses.

Part 11: Advancement of Equality

5

E104


 

Equality Bill
Part 10 — Contracts, etc.

 
 

activity which constitutes the exercise of a right of audience or the

conduct of litigation;

(b)   

in relation to Scotland, an advocate (whether in practice as such or

employed to give legal advice) or a solicitor who holds a practising

certificate.

5

(7)   

“Independent trade union” has the meaning given in section 5 of the Trade

Union and Labour Relations (Consolidation) Act 1992.

(8)   

Two persons are connected for the purposes of subsection (5) if—

(a)   

one is a company of which the other (directly or indirectly) has control,

or

10

(b)   

both are companies of which a third person (directly or indirectly) has

control.

(9)   

Two persons are also connected for the purposes of subsection (5) in so far as a

connection between them gives rise to a conflict of interest in relation to the

contract or the complaint.

15

(10)   

In relation to a qualifying compromise contract—

(a)   

a reference to a complaint is a reference to the complaint settled by the

contract;

(b)   

a reference to a complainant is a reference to the person whose

complaint is settled by the contract.

20

142     

Interpretation

(1)   

This section applies for the purposes of this Part.

(2)   

A reference to treatment of a description prohibited by this Act does not

include treatment in so far as it is treatment that would contravene—

(a)   

Part 1 (public sector duty regarding socio-economic inequalities), or

25

(b)   

Chapter 1 of Part 11 (public sector equality duty).

(3)   

“Group insurance arrangement” means an arrangement between an employer

and another person for the provision by that other person of facilities by way

of insurance to the employer’s employees (or a class of those employees).

(4)   

“Collective agreement” has the meaning given in section 178 of the Trade

30

Union and Labour Relations (Consolidation) Act 1992.

(5)   

A rule of an undertaking is a rule within subsection (6) or (7).

(6)   

A rule within this subsection is a rule made by a trade organisation or a

qualifications body for application to—

(a)   

its members or prospective members,

35

(b)   

persons on whom it has conferred a relevant qualification, or

(c)   

persons seeking conferment by it of a relevant qualification.

(7)   

A rule within this subsection is a rule made by an employer for application to—

(a)   

employees,

(b)   

persons who apply for employment, or

40

(c)   

persons the employer considers for employment.

(8)   

“Trade organisation”, “qualifications body” and “relevant qualification” each

have the meaning given in Part 5 (work).

104


 

Equality Bill
Part 10 — Contracts, etc.

 
 

Chapter 1: Public sector equality duty

Clause 143: Public sector equality duty

Effect

466. This clause imposes a duty, known as the public sector equality duty, on the public

authorities listed in Schedule 19 to have due regard to three specified matters when exercising

5

their functions. The three matters are:

a) eliminating conduct that is prohibited by the Bill, including breaches of

non-discrimination rules in occupational pension schemes and equality

clauses or rules which are read, respectively into a person’s terms of

work and into occupational pension schemes;

10

b) advancing equality of opportunity between people who share a

protected characteristic and people who do not share it; and

c) fostering good relations between people who share a protected

characteristic and people who do not share it.

467. The second and third matters apply to the protected characteristics of age, disability,

15

gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual

orientation. They do not apply to the protected characteristic of marriage and civil partnership.

468. Subsections (3) and (4) expand on what it means to have due regard to the need to

advance equality of opportunity and foster good relations.

469. As well as the public authorities listed in Schedule 19, the clause also imposes the

20

public sector equality duty on others that exercise public functions, but only in respect of their

public functions. Clause 144 explains what is meant by “public function”.

470. The clause makes clear that complying with the duty might mean treating some people

more favourably than others, where doing so is allowed by the Bill. This includes treating

disabled people more favourably than non-disabled people and making reasonable

25

adjustments for them, making use of exceptions which permit different treatment, and using

the positive action provisions in Chapter 2 of this part where they are available.

471. Schedule 18 sets out persons and functions to which the equality duty does not apply.

Background

472. This clause replaces section 71 of the Race Relations Act 1976, section 49A of the

30

Disability Discrimination Act 1995 and section 76A of the Sex Discrimination Act 1975.

These provisions impose similar public sector equality duties in relation to race, disability and

gender (including pregnancy and maternity as an implicit part of gender, and partly covering

gender reassignment) respectively. There are no equivalent public sector equality duties for

age, religion or belief or sexual orientation in current legislation. The clause extends the new

35

E105


 

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

 
 

Part 11

Advancement of equality

Chapter 1

Public sector equality duty

143     

Public sector equality duty

5

(1)   

A public authority must, in the exercise of its functions, have due regard to the

need to—

(a)   

eliminate discrimination, harassment, victimisation and any other

conduct that is prohibited by or under this Act;

(b)   

advance equality of opportunity between persons who share a relevant

10

protected characteristic and persons who do not share it;

(c)   

foster good relations between persons who share a relevant protected

characteristic and persons who do not share it.

(2)   

A person who is not a public authority but who exercises public functions

must, in the exercise of those functions, have due regard to the matters

15

mentioned in subsection (1).

(3)   

Having due regard to the need to advance equality of opportunity between

persons who share a relevant protected characteristic and persons who do not

share it involves having due regard, in particular, to the need to—

(a)   

remove or minimise disadvantages suffered by persons who share a

20

relevant protected characteristic that are connected to that

characteristic;

(b)   

meet the needs of persons who share a relevant protected characteristic

that are different from the needs of persons who do not share it;

(c)   

encourage persons who share a relevant protected characteristic to

25

participate in public life or in any other activity in which participation

by such persons is disproportionately low.

(4)   

Having due regard to the need to foster good relations between persons who

share a relevant protected characteristic and persons who do not share it

involves having due regard, in particular, to the need to—

30

(a)   

tackle prejudice, and

(b)   

promote understanding.

(5)   

Compliance with the duties in this section may involve treating some persons

more favourably than others; but that is not to be taken as permitting conduct

that would otherwise be prohibited by or under this Act.

35

(6)   

The relevant protected characteristics are—

age;

disability;

gender reassignment;

pregnancy and maternity;

40

race;

religion or belief;

sex;

sexual orientation.

105


 

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

 
 

public sector equality duty to cover gender reassignment in full, age, religion or belief and

sexual orientation.

Examples

• The duty could lead a police authority to review its recruitment procedures to ensure

they did not unintentionally deter applicants from ethnic minorities, with the aim of

5

eliminating unlawful discrimination.

• The duty could lead a local authority to target training and mentoring schemes at

disabled people to enable them to stand as local councillors, with the aim of advancing

equality of opportunity for different groups of people who have the same disability,

and in particular encouraging their participation in public life.

10

• The duty could lead a local authority to provide funding for a black women’s refuge

for victims of domestic violence, with the aim of advancing equality of opportunity for

women, and in particular meeting the different needs of women from different racial

groups.

• The duty could lead a large government department, in its capacity as an employer, to

15

provide staff with education and guidance, with the aim of fostering good relations

between its transsexual staff and its non-transsexual staff.

• The duty could lead a local authority to review its use of internet-only access to

council services; or focus “Introduction to Information Technology” adult learning

courses on older people, with the aim of advancing equality of opportunity, in

20

particular meeting different needs, for older people.

• The duty could lead a school to review its anti-bullying strategy to ensure that it

addresses the issue of homophobic bullying, with the aim of fostering good relations,

and in particular tackling prejudice against gay and lesbian people.

• The duty could lead a local authority to introduce measures to facilitate understanding

25

and conciliation between Sunni and Shi’a Muslims living in a particular area, with the

aim of fostering good relations between people of different religious beliefs.

Clause 144: Public authorities and public functions

Effect

473. This clause supplements clause 143. It introduces the Schedule that lists the public

30

authorities that are subject to the public sector equality duty and provides for them to be

subject to this duty in respect of all of their functions unless such an authority is listed only in

respect of some of its functions, in which case the duty only applies to those specified

functions.

474. “Public function” is given the same meaning as it has in the Human Rights Act 1998.

35

This term is used in subsection (2) of clause 143, which extends the public sector equality duty

to persons not listed in the Schedule but who exercise public functions.

E106


 

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

 
 

(7)   

A reference to conduct that is prohibited by or under this Act includes a

reference to—

(a)   

a breach of a non-discrimination rule;

(b)   

a breach of an equality clause or rule.

(8)   

Schedule 18 (exceptions) has effect.

5

144     

Public authorities and public functions

(1)   

A public authority is a person who is specified in Schedule 19.

(2)   

In that Schedule—

Part 1 specifies public authorities generally;

Part 2 specifies relevant Welsh authorities;

10

Part 3 specifies relevant Scottish authorities.

(3)   

A public authority specified in Schedule 19 is subject to the duty imposed by

section 143(1) in relation to the exercise of all of its functions unless subsection

(4) applies.

106


 

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

 
 

Background

475. The public sector equality duties in current legislation specify which bodies are

subject to the duties in different ways. The Race Relations Act 1976 uses a list, while the

Disability Discrimination Act 1995 and the Sex Discrimination Act 1975 apply the disability

equality duty and the gender equality duty to those who have “functions of a public nature”.

5

The Bill combines the two approaches by including a list of public authorities subject to the

duty, to provide legal certainty, and in addition applying the duty to anyone else who is

exercising public functions (in subsection (2) of clause 143).

Clause 145: Power to specify public authorities

Effect

10

476. The Schedule (Schedule 19) listing public authorities subject to the public sector

equality duty will initially comprise 3 parts. This clause enables a Minister of the Crown to

make an order amending any of these parts of the Schedule. The changes might consist of

adding a new body or removing an existing body, or moving a body from one Part of the

Schedule to another. It also enables the Welsh Ministers and the Scottish Ministers, with the

15

consent of a Minister of the Crown, to amend Parts 2 and 3 of the Schedule respectively, which

list relevant Welsh and Scottish authorities subject to the duty.

477. Relevant Welsh and Scottish authorities (as defined in clause 151) cannot be added to

Part 1 of the Schedule. They must be included in Parts 2 and 3 respectively. Nor can cross-

border Welsh and Scottish authorities (as defined in clause 151). Only a Minister of the Crown

20

has the power to amend the Schedule in relation to cross-border Welsh and Scottish

authorities. They must be added to what will become a new Part 4, which will be created when

the first cross-border authority is added to the Schedule.

478. The powers to add to the Schedule can be only used where the person exercising the

power considers that the person being added is exercising at least one public function. This

25

means that a wholly private company could not be added unless it was carrying out what the

person exercising the power considered to be a public function.

Examples

• A Minister of the Crown may decide that a new public authority which has just been

created should be included in the Schedule, and add it to the appropriate Part.

30

• A public authority might cease its devolved activities, and so a Minister of the Crown

might move it to Part 1 of the Schedule from another Part of the Schedule.

Clause 146: Power to specify public authorities: consultation and consent

Effect

479. This clause sets out who a Minister of the Crown must consult before exercising a

35

power under clause 145 to amend Schedule 19. On each occasion the Minister must consult

Equality and Human Rights Commission. If the Minister is modifying the Schedule in respect

of a relevant Welsh authority, or a cross-border Welsh authority, then he or she must also

consult the Welsh Ministers. And similarly, if the amendment relates to a relevant Scottish

E107


 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2009
Revised 24 April 2009