Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
43

66
Defence of material factor
(1)
The sex equality clause in A’s terms has no effect in relation to a difference
between A’s terms and B’s terms if the responsible person shows that the
difference is because of a material factor—
(a)
which is not the difference of sex, or
5
(b)
which is within subsection (2).
(2)
A factor is within this subsection if—
(a)
A shows that, as a result of the factor, A and persons of the same sex
doing work equal to A’s are put at a particular disadvantage when
compared with persons of the opposite sex doing work equal to A’s,
10
but
(b)
the responsible person shows that relying on the factor is a
proportionate means of achieving a legitimate aim.
(3)
For the purposes of subsection (2), the long-term objective of reducing
inequality between men’s and women’s terms of work is always to be regarded
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as a legitimate aim.
(4)
A sex e quality rule has no effect in relation to a difference between A and B in
the effect of a relevant matter if the trustees or managers of the scheme in
question show that the difference is because of a material factor which is not
the difference of sex.
20
(5)
“Relevant matter” has the meaning given in section 64.
(6)
For the purposes of this section, a factor is not material unless it is a material
difference between A’s case and B’s.
67
Exclusion of sex discrimination provisions
(1)
The relevant sex discrimination provision has no effect in relation to a term of
25
A’s that—
(a)
is modified by, or included by virtue of, a sex equality clause or rule, or
(b)
would be so modified or included but for section 66 or Part 2 of
Schedule 7.
(2)
Neither of the following is sex discrimination for the purposes of the relevant
30
sex discrimination provision—
(a)
the inclusion in A’s terms of a term that is less favourable as referred to
in section 63(2)(a);
(b)
the failure to include in A’s terms a corresponding term as referred to
in section 63(2)(b).
35
(3)
The relevant sex discrimination provision is, in relation to work of a
description given in the first column of the table, the provision referred to in
the second column so far as relating to sex.

Description of work
Provision

Employment
Section 37(2)

40

Appointment to a personal office
Section 47(6)

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
44

Description of work
Provision

Appointment to a public office
Section 48(6)

68
Sex discrimination in relation to contractual pay
(1)
This section applies in relation to a term of a person’s work—
(a)
that relates to pay, but
5
(b)
in relation to which a sex equality clause or rule has no effect.
(2)
The relevant sex discrimination provision (as defined by section 67) has no
effect in relation to the term except in so far as treatment of the person amounts
to a contravention of the provision by virtue of section 13.
Pregnancy and maternity equality
10
69
Relevant types of work
Sections 70 to 73 apply where a woman—
(a)
is employed, or
(b)
holds a personal or public office.
70
Maternity equality clause
15
(1)
If the terms of the woman’s work do not (by whatever means) include a
maternity equality clause, they are to be treated as including one.
(2)
A maternity equality clause is a provision that, in relation to the terms of the
woman’s work, has the effect referred to in section 71(1), (6) and (8).
(3)
In the case of a term relating to membership of or rights under an occupational
20
pension scheme, a maternity equality clause has only such effect as a maternity
equality rule would have.
71
Maternity equality clause: pay
(1)
A term of the woman’s work that provides for maternity-related pay to be
calculated by reference to her pay at a particular time is, if each of the following
25
three conditions is satisfied, modified as mentioned in subsection (5).
(2)
The first condition is that, after the time referred to in subsection (1) but before
the end of the protected period—
(a)
her pay increases, or
(b)
it would have increased had she not been on maternity leave.
30
(3)
The second condition is that the maternity-related pay is not—
(a)
what her pay would have been had she not been on maternity leave, or
(b)
the difference between the amount of statutory maternity pay to which
she is entitled and what her pay would have been had she not been on
maternity leave.
35
(4)
The third condition is that the terms of her work do not provide for the
maternity-related pay to be subject to—
(a)
an increase as mentioned in subsection (2)(a), or

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
45

(b)
an increase that would have occurred as mentioned in subsection (2)(b).
(5)
The modification referred to in subsection (1) is a modification to provide for
the maternity-related pay to be subject to—
(a)
any increase as mentioned in subsection (2)(a), or
(b)
any increase that would have occurred as mentioned in subsection
5
(2)(b).
(6)
A term of her work that—
(a)
provides for pay within subsection (7), but
(b)
does not provide for her to be given the pay in circumstances in which
she would have been given it had she not been on maternity leave,
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is modified so as to provide for her to be given it in circumstances in which it
would normally be given.
(7)
Pay is within this subsection if it is—
(a)
pay (including pay by way of bonus) in respect of times before the
woman is on maternity leave,
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(b)
pay by way of bonus in respect of times when she is on compulsory
maternity leave, or
(c)
pay by way of bonus in respect of times after the end of the protected
period.
(8)
A term of the woman’s work that—
20
(a)
provides for pay after the end of the protected period, but
(b)
does not provide for it to be subject to an increase to which it would
have been subject had she not been on maternity leave,

is modified so as to provide for it to be subject to the increase.
(9)
Maternity-related pay is pay (other than statutory maternity pay) to which a
25
woman is entitled—
(a)
as a result of being pregnant, or
(b)
in respect of times when she is on maternity leave.
(10)
A reference to the protected period is to be construed in accordance with
section 18.
30
72
Maternity equality rule
(1)
If an occupational pension scheme does not include a maternity equality rule,
it is to be treated as including one.
(2)
A maternity equality rule is a provision that has the effect set out in subsections
(3) and (4).
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(3)
If a relevant term does not treat time when the woman is on maternity leave as
it treats time when she is not, the term is modified so as to treat time when she
is on maternity leave as time when she is not.
(4)
If a term confers a relevant discretion capable of being exercised so that time
when she is on maternity leave is treated differently from time when she is not,
40
the term is modified so as not to allow the discretion to be exercised in that
way.
(5)
A term is relevant if it is—
(a)
a term relating to membership of the scheme,

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
46

(b)
a term relating to the accrual of rights under the scheme, or
(c)
a term providing for the determination of the amount of a benefit
payable under the scheme.
(6)
A discretion is relevant if its exercise is capable of affecting—
(a)
membership of the scheme,
5
(b)
the accrual of rights under the scheme, or
(c)
the determination of the amount of a benefit payable under the scheme.
(7)
This section does not require the woman’s contributions to the scheme in
respect of time when she is on maternity leave to be determined otherwise than
by reference to the amount she is paid in respect of that time.
10
(8)
This section, so far as relating to time when she is on ordinary maternity leave
but is not being paid by her employer, applies only in a case where the
expected week of childbirth began on or after 6 April 2003.
(9)
This section, so far as relating to time when she is on additional maternity leave
but is not being paid by her employer—
15
(a)
does not apply to the accrual of rights under the scheme in any case;
(b)
applies for other purposes only in a case where the expected week of
childbirth began on or after 5 October 2008.
(10)
In this section—
(a)
a reference to being on maternity leave includes a reference to having
20
been on maternity leave, and
(b)
a reference to being paid by the employer includes a reference to
receiving statutory maternity pay from the employer.
73
Exclusion of pregnancy and maternity discrimination provisions
(1)
The relevant pregnancy and maternity discrimination provision has no effect
25
in relation to a term of the woman’s work that is modified by a maternity
equality clause or rule.
(2)
The inclusion in the woman’s terms of a term that requires modification by
virtue of section 70(2) or (3) is not pregnancy and maternity discrimination for
the purposes of the relevant pregnancy and maternity discrimination
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provision.
(3)
The relevant pregnancy and maternity discrimination provision is, in relation
to a description of work given in the first column of the table, the provision
referred to in the second column so far as relating to pregnancy and maternity.

Description of work
Provision

35

Employment
Section 37(2)

Appointment to a personal office
Section 47(6)

Appointment to a public office
Section 48(6)