Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

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

Clause 46: Personal offices: appointments, etc.
Effect
166. This clause makes it unlawful to discriminate against, harass or victimise people who
are or wish to become personal office holders. These provisions apply in so far as other work
provisions do not – this means that where office holders are also employees, they will be
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protected by the provisions dealing with employment in respect of their employment
relationship. In respect of sex or maternity/pregnancy discrimination, a term of an offer of an
appointment to office which relates to pay is treated as discriminatory where, if accepted, it
would give rise to an equality clause or, if that is not the case, where the term is directly
discriminatory.
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167. Personal office holders are people who perform a function personally at a time and
place specified by another person and who, in return, are entitled to payment (other than
expenses or compensation for lost income). Clause 49(4) provides that, where a personal
office is a public office at the same time, it is to be treated as a public office only.
168. An office holder can be appointed by one person and then an entirely different person
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can be responsible for other matters, for example for providing facilities for the office holder
to perform his or her functions. Because of this, the clause prohibits both the person who
makes the appointment and any relevant person from discriminating against, victimising or
harassing the office holder. The relevant person is the person who is responsible for the act
complained of in each case.
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169. This clause places a duty to make reasonable adjustments on a person who makes the
appointment and any relevant person in relation to the needs of disabled people who seek or
hold personal offices.
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Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

(5)
An advocate (A) must not victimise a person (B) who is a devil or a member of
a stable—
(a)
as to the terms on which B is a devil or a member of the stable;
(b)
in the way A affords B access, or by not affording B access, to
opportunities for training or gaining experience or for receiving any
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other benefit, facility or service;
(c)
by terminating A’s relationship with B (where B is a devil);
(d)
by subjecting B to pressure to leave the stable;
(e)
by subjecting B to any other detriment.
(6)
A person must not, in relation to instructing an advocate—
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(a)
discriminate against the advocate by subjecting the advocate to a
detriment;
(b)
harass the advocate;
(c)
victimise the advocate.
(7)
A duty to make reasonable adjustments applies to an advocate.
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(8)
This section (apart from subsection (6)) applies in relation to an advocate’s
clerk as it applies in relation to an advocate; and for that purpose the reference
to an advocate’s clerk includes a reference to a person who carries out the
functions of an advocate’s clerk.
(9)
“Advocate” means a practising member of the Faculty of Advocates.
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Office-holders
46
Personal offices: appointments, etc.
(1)
This section applies in relation to personal offices.
(2)
A personal office is an office or post—
(a)
to which a person is appointed to discharge a function personally
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under the direction of another person, and
(b)
in respect of which an appointed person is entitled to remuneration.
(3)
A person (A) who has the power to make an appointment to a personal office
must not discriminate against a person (B)—
(a)
in the arrangements A makes for deciding to whom to offer the
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appointment;
(b)
as to the terms on which A offers B the appointment;
(c)
by not offering B the appointment.
(4)
A person who has the power to make an appointment to a personal office must
not, in relation to the office, harass a person seeking, or being considered for,
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the appointment.
(5)
A person (A) who has the power to make an appointment to a personal office
must not victimise a person (B)—
(a)
in the arrangements A makes for deciding to whom to offer the
appointment;
40
(b)
as to the terms on which A offers B the appointment;
(c)
by not offering B the appointment.
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Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

Background
170. This clause is designed to replicate the effect of provisions in current legislation.
Examples
• A company board refuses to appoint a candidate as director because she is black. This
would be direct discrimination.
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• A company terminates the appointment of a director because it is discovered that the
she is pregnant. This would be direct discrimination.
Clause 47: Public offices: appointments, etc.
Effect
171. This clause makes it unlawful to discriminate against, harass or victimise people who
10
are or wish to become public office holders. Like the personal office holder provisions above,
these provisions apply in so far as other work provisions do not. This means that where public
office holders are also employees, they will be protected by the provisions dealing with
employment in respect of their employment. In respect of sex or maternity/pregnancy
discrimination, a term of an offer of an appointment to office which relates to pay is treated as
15
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Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

(6)
A person (A) who is a relevant person in relation to a personal office must not
discriminate against a person (B) appointed to the office—
(a)
as to the terms of B’s appointment;
(b)
in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
5
other benefit, facility or service;
(c)
by terminating B’s appointment;
(d)
by subjecting B to any other detriment.
(7)
A relevant person in relation to a personal office must not, in relation to that
office, harass a person appointed to it.
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(8)
A person (A) who is a relevant person in relation to a personal office must not
victimise a person (B) appointed to the office—
(a)
as to the terms of B’s appointment;
(b)
in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
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other benefit, facility or service;
(c)
by terminating B’s appointment;
(d)
by subjecting B to any other detriment.
(9)
A duty to make reasonable adjustments applies to—
(a)
a person who has the power to make an appointment to a personal
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office;
(b)
a relevant person in relation to a personal office.
(10)
For the purposes of subsection (2)(a), a person is to be regarded as discharging
functions personally under the direction of another person if that other person
is entitled to direct the person as to when and where to discharge the functions.
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(11)
For the purposes of subsection (2)(b), a person is not to be regarded as entitled
to remuneration merely because the person is entitled to payments—
(a)
in respect of expenses incurred by the person in discharging the
functions of the office or post, or
(b)
by way of compensation for the loss of income or benefits the person
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would or might have received had the person not been discharging the
functions of the office or post.
(12)
Subsection (3)(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
35
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
(3)(b) by virtue of section 13 or 17.
47
Public offices: appointments, etc.
40
(1)
This section and section 48 apply in relation to public offices.
(2)
A public office is—
(a)
an office or post, appointment to which is made by a member of the
executive;
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Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

discriminatory where, if accepted, it would give rise to an equality clause or if that is not the
case where the term is directly discriminatory.
172. Public office holders are people appointed by, on the recommendation of, or with the
approval of, a member of the executive branch of Government, such as a Government
Minister, or people who are appointed on the recommendation, or subject to the approval of,
5
either of the Houses of Parliament, the National Assembly for Wales, or the Scottish
Parliament.
173. A public office holder can be appointed by one person and then an entirely different
person can be responsible for other matters, for example for providing facilities for the office
holder to perform his or her functions. Because of this, the clause prohibits both the person
10
with the power to make the appointment and the relevant person from discriminating against,
victimising or harassing the office holder. The relevant person is the person who is responsible
for the act complained of in each case (but does not include either of the Houses of Parliament,
the National Assembly for Wales or the Scottish Parliament).
174. This clause also places on the person who has the power to make an appointment and
15
any relevant person a duty to make reasonable adjustments for disabled people seeking or
holding public offices.
Background
175. This clause for the most part is designed to replicate the effect of provisions in current
legislation. It also extends protection from discrimination, harassment and victimisation to
20
those appointed on the recommendation or approval of law making bodies such as the Scottish
Parliament and the Welsh Assembly.
176. Examples
• A Government Minister with the power to appoint the non-executive board members
of a non-departmental public body fails to appoint a candidate because he is gay. This
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would be direct discrimination.
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Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

(b)
an office or post, appointment to which is made on the
recommendation of, or subject to the approval of, a member of the
executive;
(c)
an office or post, appointment to which is made on the
recommendation of, or subject to the approval of, the House of
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Commons, the House of Lords, the National Assembly for Wales or the
Scottish Parliament.
(3)
A person (A) who has the power to make an appointment to a public office
within subsection (2)(a) or (b) must not discriminate against a person (B)—
(a)
in the arrangements A makes for deciding to whom to offer the
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appointment;
(b)
as to the terms on which A offers B the appointment;
(c)
by not offering B the appointment.
(4)
A person who has the power to make an appointment to a public office within
subsection (2)(a) or (b) must not, in relation to the office, harass a person
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seeking, or being considered for, the appointment.
(5)
A person (A) who has the power to make an appointment to a public office
within subsection (2)(a) or (b) must not victimise a person (B)—
(a)
in the arrangements A makes for deciding to whom to offer the
appointment;
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(b)
as to the terms on which A offers B the appointment;
(c)
by not offering B the appointment.
(6)
A person (A) who is a relevant person in relation to a public office within
subsection (2)(a) or (b) must not discriminate against a person (B) appointed to
the office—
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(a)
as to B’s terms of appointment;
(b)
in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
other benefit, facility or service;
(c)
by terminating the appointment;
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(d)
by subjecting B to any other detriment.
(7)
A person (A) who is a relevant person in relation to a public office within
subsection (2)(c) must not discriminate against a person (B) appointed to the
office—
(a)
as to B’s terms of appointment;
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(b)
in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
other benefit, facility or service;
(c)
by subjecting B to any other detriment (other than by terminating the
appointment).
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(8)
A relevant person in relation to a public office must not, in relation to that
office, harass a person appointed to it.
(9)
A person (A) who is a relevant person in relation to a public office within
subsection (2)(a) or (b) must not victimise a person (B) appointed to the office—
(a)
as to B’s terms of appointment;
45
(b)
in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
other benefit, facility or service;
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Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

Clause 48: Public offices: recommendations for appointments etc.
Effect
176. This clause makes it unlawful for a person with power to make recommendations
about or approve appointments to public offices to discriminate against, harass or victimise
people seeking or being considered as public office holders in respect of the recommendation
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or approval process. It also imposes a duty on the person with the power to make a
recommendation or approve an appointment to make reasonable adjustments for disabled
people who seek or are being considered for appointment to public offices.
177. This clause does not apply in respect of all public offices, only those to which the
appointment is made on the recommendation or approval of a member of the executive or
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where the appointment is made by a member of the executive on the recommendation or
approval of a relevant body (for example, a non-departmental public body).
Background
178. This clause is for the most part designed to replicate the effect of provisions in current
legislation. It also extends protection from discrimination, harassment and victimisation to
15
those appointed by a member of the executive on the recommendation or with the approval of
a non-departmental public body.
Examples
• It would be direct discrimination for the Government Minister responsible for
approving the appointment of members of the BBC Trust to refuse to approve the
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appointment of a person because he has a hearing impairment.
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