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(5) | A reference to care includes a reference to supervision. |
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Contributions to personal pension schemes |
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16 (1) | A Minister of the Crown may by order provide that it is not an age |
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contravention for an employer to maintain or use, with respect to |
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contributions to personal pension schemes, practices, actions or decisions |
| |
relating to age which are of a specified description. |
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(2) | An order authorising the use of practices, actions or decisions which are not |
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in use before the order comes into force must not be made unless the |
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Minister consults such persons as the Minister thinks appropriate. |
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(3) | “Personal pension scheme” has the meaning given in section 1 of the Pension |
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Schemes Act 1993; and “employer”, in relation to a personal pension scheme, |
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has the meaning given in section 318(1) of the Pensions Act 2004. |
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Non-contractual payments to women on maternity leave |
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17 (1) | A person does not contravene section 36(1)(b) or (2), so far as relating to |
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pregnancy and maternity, by depriving a woman who is on maternity leave |
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of any benefit from the terms of her employment relating to pay. |
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(2) | The reference in sub-paragraph (1) to benefit from the terms of a woman’s |
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employment relating to pay does not include a reference to— |
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(a) | maternity-related pay (including maternity-related pay that is |
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(b) | pay (including increase-related pay) in respect of times when she is |
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not on maternity leave, or |
| |
(c) | pay by way of bonus in respect of times when she is on compulsory |
| |
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(3) | For the purposes of sub-paragraph (2), pay is increase-related in so far as it |
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is to be calculated by reference to increases in pay that the woman would |
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have received had she not been on maternity leave. |
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(4) | A reference to terms of her employment is a reference to terms of her |
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employment that are not in her contract of employment, her contract of |
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apprenticeship or her contract to do work personally. |
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(5) | “Pay” means benefits— |
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(a) | that consist of the payment of money to an employee by way of |
| |
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(b) | that are not benefits whose provision is regulated by the contract |
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referred to in sub-paragraph (4). |
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(6) | “Maternity-related pay” means pay to which a woman is entitled— |
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(a) | as a result of being pregnant, or |
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(b) | in respect of times when she is on maternity leave. |
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788. This paragraph permits employers to provide redundancy schemes which mirror the |
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statutory redundancy payments scheme contained in Part 11 of the Employment Rights Act |
| |
1996 but offer more generous terms |
| |
789. The statutory redundancy scheme at Part 11 of the Employment Rights Act 1996 |
| |
(“ERA 1996”) requires an employer to make a payment upon redundancy, the amount of |
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which is dependant upon the employee’s age, length of service, and weekly pay (subject to a |
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cap: see Schedule 227 ERA 1996). The statutory redundancy scheme is lawful under the |
| |
Directive as it is objectively justified under Article 6.1 of the Directive. |
| |
790. An employer who makes a redundancy payment to an employee in accordance with |
| |
Part 11 ERA 1996 does not have to justify it. Both the statutory authority exemption (in |
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Schedule 22) and this regulation make it clear that the employer is acting lawfully, even |
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though the payment is calculated using age related criteria. |
| |
791. But this paragraph is not aimed at such employers. The principal object of this |
| |
provision is to assist those employers who base their redundancy schemes on the statutory |
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scheme but who are more generous than the statutory scheme requires them to be. |
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792. This exception is designed to replicate the effect of an existing exemption in |
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regulation 33 of the 2006 Regulations. |
| |
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• An employer may pay qualifying employees an enhanced redundancy payment based |
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on their actual week’s pay rather than the maximum amount as specified in section 227 |
| |
ERA 1996 (currently £350). |
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• So an employee (P) aged 45 with 18 years continuous employment earning £600 a |
| |
week would receive one and a half weeks pay for each year of employment in which |
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he was not below the age of 41 and one week’s pay for each year of employment in |
| |
which he was not below the age of 22 so P would receive the following: 3 x (1.5 x |
| |
£600) + (15 x £600) = £11,700. |
| |
• An employer may pay qualifying employees an enhanced redundancy payment |
| |
calculated in accordance with section 162 of ERA 1996 but after calculating the |
| |
appropriate amount for each year of employment, the employer may apply a multiple |
| |
of two rather than one. So the employer could pay P £23, 400 rather than £11,700. |
| |
• Alternatively, the employer could apply the maximum amount of £350 to P’s payment |
| |
but apply a multiple of 2 and pay P the following: 2 x [3 x (1.5 x £350) + (15 x £350)] |
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= 2 x (£1575 + 5250) = £13650. |
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Life assurance: paragraph 14 |
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793. This paragraph provides an exception for employers who provide life assurance cover |
| |
to workers who have had to retire early on grounds of ill health. |
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Benefits dependent on marital status, etc. |
| |
18 (1) | A person does not contravene this Part of this Act, so far as relating to sexual |
| |
orientation, by doing anything which prevents or restricts a person who is |
| |
not married from having access to a benefit, facility or service— |
| |
(a) | the right to which accrued before 5 December 2005 (the day on which |
| |
section 1 of the Civil Partnership Act 2004 came into force), or |
| |
(b) | which is payable in respect of periods of service before that date. |
| |
(2) | A person does not contravene this Part of this Act, so far as relating to sexual |
| |
orientation, by providing married persons and civil partners (to the |
| |
exclusion of all other persons) with access to a benefit, facility or service. |
| |
Provision of services etc. to the public |
| |
19 (1) | A does not contravene a provision mentioned in sub-paragraph (2) in |
| |
relation to the provision of a benefit, facility or service to B if A is concerned |
| |
with the provision (for payment or not) of a benefit, facility or service of the |
| |
same description to the public. |
| |
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(a) | section 36(2) and (4); |
| |
(b) | sections 41(2) and (6) and 42(2) and (6); |
| |
(c) | sections 46(6) and (8) and 47(6), (7), (9) and (10). |
| |
(3) | Sub-paragraph (1) does not apply if— |
| |
(a) | the provision by A to the public differs in a material respect from the |
| |
provision by A to comparable persons, |
| |
(b) | the provision to B is regulated by B’s terms, or |
| |
(c) | the benefit, facility or service relates to training. |
| |
(4) | “Comparable persons” means— |
| |
(a) | in relation to section 36(2) or (4), the other employees; |
| |
(b) | in relation to section 41(2) and (6), the other partners of the firm; |
| |
(c) | in relation to section 42(2) and (6), the other members of the LLP; |
| |
(d) | in relation to section 46(6) or (8) or 47(6), (7), (9) or (10), persons |
| |
holding offices or posts not materially different from that held by B. |
| |
| |
(a) | the terms of B’s employment, |
| |
(b) | the terms on which B has the position as a partner or member, or |
| |
(c) | the terms of B’s appointment to the office. |
| |
(6) | A reference to the public includes a reference to a section of the public which |
| |
| |
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20 (1) | It is not a contravention of this Part, so far as relating to relevant |
| |
discrimination, to do anything in relation to an annuity, life insurance |
| |
policy, accident insurance policy or similar matter involving the assessment |
| |
| |
(a) | the thing is done by reference to actuarial or other data from a source |
| |
on which it is reasonable to rely, and |
| |
| |
|
|
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|
| |
794. This clause is designed to replicate the effect of the exception at regulation 34 of the |
| |
| |
795. Life assurance cover is usually provided in respect of people below the age of 65 (or |
| |
the employer’s normal retirement age if different). Such cover is not provided in respect of |
| |
older people because, as the probability of death increases, it becomes more and more |
| |
expensive to provide. If employers were no longer able to impose – or had to objectively |
| |
justify – a “cut off” for the provision of such cover to those who have retired early, there is a |
| |
real risk they would simply “level down” in other words, they would cease to offer it to |
| |
anyone. This exception is intended to avoid that happening. |
| |
| |
• An employer who has no normal retirement age provides life assurance cover to those |
| |
in his employment which ceases when an employee reaches 65 when an employee |
| |
retires early due to ill health. This is lawful. |
| |
• An employer who operates a normal retirement age of 70 provides life insurance |
| |
cover to those in his employment which ceases when an employee reaches the age of |
| |
70 when an employee retires early due to ill health. . |
| |
| |
| |
796. This paragraph creates an exception from the prohibition of age discrimination in |
| |
employment and certain other work relationships for benefits which relate to the provision of |
| |
child care, and to which access is restricted to children of a particular age group. The |
| |
exception applies not only to natural parents, but also to others with parental responsibility for |
| |
| |
797. The exception covers benefits which relate to the provision of care for children aged |
| |
| |
| |
798. Following the ruling of the European Court of Justice in Coleman v Attridge Law, it is |
| |
direct discrimination for an employer to treat an employee less favourably on grounds of the |
| |
age of an employee’s child. There is, therefore, a potential impact on the provision of |
| |
facilities, such as childcare, where access is limited by reference to the child’s age. |
| |
799. The exception will allow employers to continue to offer employees child care |
| |
facilities based on the age of a child without being open to a challenge of direct discrimination |
| |
| |
| |
• An employer may provide a crèche for employees’ children aged two and under; or a |
| |
holiday club open only to employees’ children aged between 5 and 9. In each of these |
| |
examples, the exception will allow an employer to discriminate against employees |
| |
because of their association with a child who does not fall within the specified age |
| |
| |
| |
|
|
| |
|
• The exception does not apply to employee benefits which do not have a close |
| |
relationship with the provision of childcare. For example, if an employer offers |
| |
luncheon vouchers, gym membership or a company car only to those employees with |
| |
children of a particular age group, the exception does not apply as none of these |
| |
benefits involves childcare. |
| |
• Neither does the exception apply to benefits conferred as a result of the employee’s |
| |
employment, but applying directly to the child, where childcare is not involved. For |
| |
example, an employer may offer private healthcare to employees’ children up to a |
| |
certain age, or use of the employer’s services (e.g. free train tickets if the employer is a |
| |
train company) by such children. |
| |
Contributions to personal pensions schemes: paragraph 16 |
| |
| |
800. This paragraph gives a Minister the power to specify practices, actions or decisions |
| |
relating to age in respect of employer contributions to personal pension schemes that an |
| |
employer can use without breaching a non-discrimination rule. |
| |
| |
801. Exceptions to the non-discrimination rule in relation to age in respect of employer |
| |
contributions to personal pension schemes are currently set out at Schedule 2 to the |
| |
Employment Equality (Age) Regulations 2006 (SI 2006/1031). |
| |
| |
Non-contractual payments to women on maternity leave: paragraph 17 |
| |
| |
802. This paragraph sets out an exception to the prohibitions on pregnancy and maternity |
| |
discrimination by employers which allows an employer not to offer an applicant or provide an |
| |
employee who is on maternity leave the benefits of the non-contractual terms and conditions |
| |
of her employment. It also explains what is and is not covered by this exception. |
| |
| |
803. This paragraph is designed to replicate the effect of provisions in the Sex |
| |
Discrimination Act 1975. It does for non-contractual terms and conditions of employment |
| |
relating to pay what is done for contractual terms in clause 69. |
| |
| |
• An employer would not have to pay a woman on maternity leave a discretionary |
| |
bonus if the only condition of eligibility for the bonus was that the employee must be |
| |
in active employment at the time of payment. |
| |
• If a discretionary bonus amounted to retrospective payment for time worked over a |
| |
specific period (such as the past year) during which a woman took maternity leave, the |
| |
employer must include any part of that period the woman spent on compulsory |
| |
maternity leave in calculating the bonus. |
| |
| |