|
|
| |
|
• An employer enforces a “no beards” policy by asking staff to shave. This could be |
| |
indirect discrimination, because it would have a particular impact on Muslims or |
| |
| |
Clause 37: Employees and applicants: harassment |
| |
| 5 |
143. This clause makes it unlawful for an employer to harass employees and people |
| |
applying for employment. It also makes the employer liable for harassment of its employees |
| |
by third parties, such as customers or clients, over whom the employer does not have direct |
| |
control. Liability in relation to third party harassment will however only arise when |
| |
harassment has occurred on a least two occasions, the employer is aware that it has taken |
| 10 |
place, and has not taken reasonable steps to prevent it happening again. |
| |
| |
144. This clause is designed to replicate the effect of provisions in current legislation as |
| |
regard harassment by employers, and extend to the other protected characteristics (apart from |
| |
marriage and civil partnership and pregnancy and maternity) the position in relation to |
| 15 |
employer liability for sex harassment under the Sex Discrimination Act 1975. |
| |
| |
• A shop assistant with a strong Nigerian accent tells her manager that she is upset and |
| |
humiliated by a customer who regularly uses the shop and each time makes derogatory |
| |
remarks about Africans in her hearing. If her manager does nothing to try to stop it |
| 20 |
happening again, he would be liable for racial harassment. |
| |
| |
|
|
| |
|
(d) | by subjecting B to any other detriment. |
| |
(5) | A duty to make reasonable adjustments applies to an employer. |
| |
(6) | Subsection (1)(b), so far as relating to sex or pregnancy and maternity, does not |
| |
apply to a term that relates to pay— |
| |
(a) | unless, were B to accept the offer, an equality clause or rule would have |
| 5 |
effect in relation to the term, or |
| |
(b) | if paragraph (a) does not apply, except in so far as making an offer on |
| |
terms including that term amounts to a contravention of subsection |
| |
(1)(b) by virtue of section 13 or 17. |
| |
(7) | In subsections (2)(c) and (4)(c), the reference to dismissing B includes a |
| 10 |
reference to the termination of B’s employment— |
| |
(a) | by the expiry of a period (including a period expiring by reference to an |
| |
| |
(b) | by an act of B’s (including giving notice) in circumstances such that B |
| |
is entitled, because of A’s conduct, to terminate the employment |
| 15 |
| |
(8) | Subsection (7)(a) does not apply if, immediately after the termination, the |
| |
employment is renewed on the same terms. |
| |
37 | Employees and applicants: harassment |
| |
(1) | An employer (A) must not, in relation to employment by A, harass a person |
| 20 |
| |
(a) | who is an employee of A’s; |
| |
(b) | who has applied to A for employment. |
| |
(2) | The circumstances in which A is to be treated as harassing B under subsection |
| |
| 25 |
(a) | a third party harasses B in the course of B’s employment, and |
| |
(b) | A failed to take such steps as would have been reasonably practicable |
| |
to prevent the third party from doing so. |
| |
(3) | Subsection (2) does not apply unless A knows that B has been harassed in the |
| |
course of B’s employment on at least two other occasions by a third party; and |
| 30 |
it does not matter whether the third party is the same or a different person on |
| |
| |
(4) | A third party is a person other than— |
| |
| |
| 35 |
| |
|
|
| |
|
Clause 38: Contract workers |
| |
| |
145. This clause makes it unlawful for a person (referred to as a principal) who makes work |
| |
available to contract workers to discriminate against, harass or victimise them. Contract |
| |
workers are separately protected from discrimination by their employer (for example, the |
| 5 |
agency for which they work and which places them with the principal) under clause 36. The |
| |
clause also imposes a duty on the principal to make reasonable adjustments for disabled |
| |
contract workers (in addition to the duty on the contract worker’s employer). |
| |
| |
146. This clause is designed to replicate the effect of provisions in current legislation, while |
| 10 |
codifying case law to make clear that there does not need to be a direct contractual relationship |
| |
between the employer and the principal for this protection to apply. |
| |
| |
• A hotel manager refuses to accept a black African contract worker sent to him by an |
| |
agency because of fears that guests would be put off by his accent. This would be |
| 15 |
| |
• A bank treats a female contract worker less well than her male counterparts, for |
| |
example by insisting that she makes coffee for all meetings. This would be direct |
| |
| |
Clause 39: Identity of employer |
| 20 |
| |
147. This clause provides that police constables and police cadets are treated as employees |
| |
for the purposes of this Part of the Bill. It identifies the relevant employer as either the chief |
| |
officer or the responsible authority (as defined in clause 40), depending on who commits the |
| |
| 25 |
148. Constables serving with the Civil Nuclear Constabulary are treated as employees of |
| |
the Civil Nuclear Police Authority. |
| |
149. A constable seconded to the Serious Organised Crime Agency (SOCA) or Scottish |
| |
Police Services Authority (SPSA) is treated as employed by SOCA or SPSA. |
| |
150. A constable at the Scottish Crime and Drugs Enforcement Agency (SCDEA) is treated |
| 30 |
as employed by the Director General of SCDEA. |
| |
| |
|
|
| |
|
| |
(1) | A principal must not discriminate against a contract worker— |
| |
(a) | as to the terms on which the principal allows the worker to do the work; |
| |
(b) | by not allowing the worker to do, or to continue to do, the work; |
| |
(c) | in the way the principal affords the worker access, or by not affording |
| 5 |
the worker access, to opportunities for receiving a benefit, facility or |
| |
| |
(d) | by subjecting the worker to any other detriment. |
| |
(2) | A principal must not, in relation to contract work, harass a contract worker. |
| |
(3) | A principal must not victimise a contract worker— |
| 10 |
(a) | as to the terms on which the principal allows the worker to do the work; |
| |
(b) | by not allowing the worker to do, or to continue to do, the work; |
| |
(c) | in the way the principal affords the worker access, or by not affording |
| |
the worker access, to opportunities for receiving a benefit, facility or |
| |
| 15 |
(d) | by subjecting the worker to any other detriment. |
| |
(4) | A duty to make reasonable adjustments applies to a principal (as well as to the |
| |
employer of a contract worker). |
| |
(5) | A “principal” is a person who makes work available for an individual who is— |
| |
(a) | employed by another person, and |
| 20 |
(b) | supplied by that other person in furtherance of a contract to which the |
| |
principal is a party (whether or not that other person is a party to it). |
| |
(6) | “Contract work” is work such as is mentioned in subsection (5). |
| |
(7) | A “contract worker” is an individual supplied to a principal in furtherance of a |
| |
contract such as is mentioned in subsection (5)(b). |
| 25 |
| |
| |
(1) | For the purposes of this Part, holding the office of constable is to be treated as |
| |
| |
(a) | by the chief officer, in respect of any act done by the chief officer in |
| 30 |
relation to a constable or appointment to the office of constable; |
| |
(b) | by the responsible authority, in respect of any act done by the authority |
| |
in relation to a constable or appointment to the office of constable. |
| |
(2) | For the purposes of this Part, holding an appointment as a police cadet is to be |
| |
| 35 |
(a) | by the chief officer, in respect of any act done by the chief officer in |
| |
relation to a police cadet or appointment as one; |
| |
(b) | by the responsible authority, in respect of any act done by the authority |
| |
in relation to a police cadet or appointment as one. |
| |
(3) | Subsection (1) does not apply to service with the Civil Nuclear Constabulary |
| 40 |
(as to which, see section 55(2) of the Energy Act 2004). |
| |
(4) | Subsection (1) does not apply to a constable at SOCA, SPSA or SCDEA. |
| |
| |
|
|
| |
|
| |
151. This clause is designed to replicate the provisions in current law and extends coverage |
| |
to SPSA and SCDEA. It also removes the requirement to pay out of police funds |
| |
compensation and related costs arising from the personal liability of chief officers for acts |
| |
which are unlawful under the Bill. Payments of compensation and related costs arising from |
| 5 |
the personal liability of chief officers will instead be dealt with by the Police Act 1996 and the |
| |
Police (Scotland) Act 2006, as for all other police officers. |
| |
| |
• A chief officer refuses to allocate protective equipment to female constables. The |
| |
chief officer would be treated as the employer in a direct discrimination claim. |
| 10 |
Clause 40: Interpretation |
| |
| |
152. This clause explains what is meant by terms such as “chief officer” and “relevant Act” |
| |
| |
| 15 |
153. This clause replaces similar provisions in current legislation, but includes some |
| |
additional terms, such as those relevant to the SPSA and SCDEA. |
| |
| |
|
|
| |
|
(5) | A constable at SOCA or SPSA is to be treated as employed by it, in respect of |
| |
any act done by it in relation to the constable. |
| |
(6) | A constable at SCDEA is to be treated as employed by the Director General of |
| |
SCDEA, in respect of any act done by the Director General in relation to the |
| |
| 5 |
| |
(1) | This section applies for the purposes of section 39. |
| |
(2) | “Chief officer” means— |
| |
(a) | in relation to an appointment under a relevant Act, the chief officer of |
| |
police for the police force to which the appointment relates; |
| 10 |
(b) | in relation to any other appointment, the person under whose direction |
| |
and control the body of constables or other persons to which the |
| |
| |
(c) | in relation to a constable or other person under the direction and |
| |
control of a chief officer of police, that chief officer of police; |
| 15 |
(d) | in relation to any other constable or any other person, the person under |
| |
whose direction and control the constable or other person is. |
| |
(3) | “Responsible authority” means— |
| |
(a) | in relation to an appointment under a relevant Act, the police authority |
| |
that maintains the police force to which the appointment relates; |
| 20 |
(b) | in relation to any other appointment, the person by whom a person |
| |
would (if appointed) be paid; |
| |
(c) | in relation to a constable or other person under the direction and |
| |
control of a chief officer of police, the police authority that maintains |
| |
the police force for which that chief officer is the chief officer of police; |
| 25 |
(d) | in relation to any other constable or any other person, the person by |
| |
whom the constable or other person is paid. |
| |
(4) | “Police cadet” means a person appointed to undergo training with a view to |
| |
| |
(5) | “SOCA” means the Serious Organised Crime Agency; and a reference to a |
| 30 |
constable at SOCA is a reference to a constable seconded to it to serve as a |
| |
| |
(6) | “SPSA” means the Scottish Police Services Authority; and a reference to a |
| |
constable at SPSA is a reference to a constable— |
| |
(a) | seconded to it to serve as a member of its staff, and |
| 35 |
| |
(7) | “SCDEA” means the Scottish Crime and Drugs Enforcement Agency; and a |
| |
reference to a constable at SCDEA is a reference to a constable who is a police |
| |
member of it by virtue of paragraph 7(2)(a) or (b) of Schedule 2 to the Police, |
| |
Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) (secondment). |
| 40 |
| |
|
|
| |
|
| |
| |
154. This clause makes it unlawful for firms (and those intending to set up a firm) to |
| |
discriminate against, harass or victimise their partners, or people seeking to be partners in the |
| |
firm. Activities covered by these provisions could include the offering of partnerships or |
| 5 |
giving existing partners access to opportunities such as training and/or transfers to other |
| |
branches of the firm. It imposes on firms and people setting up firms a duty to make |
| |
reasonable adjustments for disabled partners and prospective partners. |
| |
155. In the case of limited partnerships, these prohibitions only apply to those partners who |
| |
are involved with the operation of the firm (general partners). |
| 10 |
| |
156. Because partners are mainly governed by their partnership agreements, rather than by |
| |
employment contracts, separate provisions are needed to provide protection from |
| |
discrimination, harassment and victimisation for partners in ordinary and limited partnerships. |
| |
This clause is designed to replicate the effect of provisions in current legislation but provide |
| 15 |
consistent protection in respect of race (whereas currently the protection on grounds of colour |
| |
and nationality differs in some respects from that on grounds of race and ethnic or national |
| |
| |
| |
• A firm refuses to accept an application for partnership from a black candidate, who is |
| 20 |
qualified to join, because he is of African origin. This would be direct discrimination. |
| |
| |
|