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

Equality Bill


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

• 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

Orthodox Jews.

Clause 37: Employees and applicants: harassment

Effect

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.

Background

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.

Example

• 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.

E27


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

(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

event or circumstance);

(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

without notice.

(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

(B)—

(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

(1) include those where—

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

each occasion.

(4)   

A third party is a person other than—

(a)   

A, or

(b)   

an employee of A’s.

35

27


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

Clause 38: Contract workers

Effect

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).

Background

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.

Examples

• 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

direct discrimination.

• 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

discrimination.

Clause 39: Identity of employer

20

Effect

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

act in question.

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.

E28


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

38      

Contract workers

(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

service;

(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

service;

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

Police officers

39      

Identity of employer

(1)   

For the purposes of this Part, holding the office of constable is to be treated as

employment—

(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

treated as employment—

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.

28


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

Background

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.

Example

• 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

Effect

152. This clause explains what is meant by terms such as “chief officer” and “relevant Act”

used in clause 39.

Background

15

153. This clause replaces similar provisions in current legislation, but includes some

additional terms, such as those relevant to the SPSA and SCDEA.

E29


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

(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

constable.

5

40      

Interpretation

(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

appointment relates is;

(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

becoming a constable.

(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

member of its staff.

(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

(b)   

not at SCDEA.

(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

29


 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

 
 

Clause 41: Partnerships

Effect

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

Background

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

origin).

Example

• 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.

E30


 
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