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Equality Bill


Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

78

 

126     

Section 125: supplementary

(1)   

This section applies for the purposes of section 125.

(2)   

A standard case is a case which is not—

(a)   

a stable work case,

(b)   

a concealment case,

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(c)   

an incapacity case, or

(d)   

a concealment case and an incapacity case.

(3)   

A stable work case is a case where the proceedings relate to a period during

which there was a stable working relationship between the worker and the

responsible person (including any time after the terms of work had expired).

10

(4)   

A concealment case in proceedings relating to an equality clause is a case

where—

(a)   

the responsible person deliberately concealed a qualifying fact from the

worker, and

(b)   

the worker did not discover (or could not with reasonable diligence

15

have discovered) the qualifying fact until after the relevant day.

(5)   

A concealment case in proceedings relating to an equality rule is a case

where—

(a)   

the employer or the trustees or managers of the occupational pension

scheme in question deliberately concealed a qualifying fact from the

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member, and

(b)   

the member did not discover (or could not with reasonable diligence

have discovered) the qualifying fact until after the relevant day.

(6)   

A qualifying fact for the purposes of subsection (4) or (5) is a fact—

(a)   

which is relevant to the complaint, and

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(b)   

without knowledge of which the worker or member could not

reasonably have been expected to bring the proceedings.

(7)   

An incapacity case in proceedings relating to an equality clause with respect to

terms of work other than terms of service in the armed forces is a case where

the worker had an incapacity during the period of 6 months beginning with the

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later of—

(a)   

the relevant day, or

(b)   

the day on which the worker discovered (or could with reasonable

diligence have discovered) the qualifying fact deliberately concealed

from the worker by the responsible person.

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(8)   

An incapacity case in proceedings relating to an equality clause with respect to

terms of service in the armed forces is a case where the worker had an

incapacity during the period of 9 months beginning with the later of—

(a)   

the last day of the period of service during which the complaint arose,

or

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(b)   

the day on which the worker discovered (or could with reasonable

diligence have discovered) the qualifying fact deliberately concealed

from the worker by the responsible person.

(9)   

An incapacity case in proceedings relating to an equality rule is a case where

the member of the occupational pension scheme in question had an incapacity

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during the period of 6 months beginning with the later of—

(a)   

the relevant day, or

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

79

 

(b)   

the day on which the member discovered (or could with reasonable

diligence have discovered) the qualifying fact deliberately concealed

from the member by the employer or the trustees or managers of the

scheme.

(10)   

The relevant day for the purposes of this section is—

5

(a)   

the last day of the employment or appointment, or

(b)   

the day on which the stable working relationship between the worker

and the responsible person ended.

127     

Assessment of whether work is of equal value

(1)   

This section applies to proceedings before an employment tribunal on—

10

(a)   

a complaint relating to a breach of an equality clause or rule, or

(b)   

a question referred to the tribunal by virtue of section 124(2).

(2)   

Where a question arises in the proceedings as to whether one person’s work is

of equal value to another’s, the tribunal may, before determining the question,

require a member of the panel of independent experts to prepare a report on

15

the question.

(3)   

The tribunal may withdraw a requirement that it makes under subsection (2);

and, if it does so, it may—

(a)   

request the panel member to provide it with specified documentation;

(b)   

make such other requests to that member as are connected with the

20

withdrawal of the requirement.

(4)   

If the tribunal requires the preparation of a report under subsection (2) (and

does not withdraw the requirement), it must not determine the question unless

it has received the report.

(5)   

Subsection (6) applies where—

25

(a)   

a question arises in the proceedings as to whether the work of one

person (A) is of equal value to the work of another (B), and

(b)   

A’s work and B’s work have been given different values by a job

evaluation study.

(6)   

The tribunal must determine that A’s work is not of equal value to B’s work

30

unless it has reasonable grounds for suspecting that the evaluation contained

in the study—

(a)   

was based on a system that discriminates because of sex, or

(b)   

is otherwise unreliable.

(7)   

For the purposes of subsection (6)(a), a system discriminates because of sex if a

35

difference (or coincidence) between values that the system sets on different

demands is not justifiable regardless of the sex of the person on whom the

demands are made.

(8)   

A reference to a member of the panel of independent experts is to a person—

(a)   

who is for the time being designated as such by the Advisory,

40

Conciliation and Arbitration Service (ACAS) for the purposes of this

section, and

(b)   

who is neither a member of the Council of ACAS nor one of its officers

or members of staff.

(9)   

“Job evaluation study” has the meaning given in section 77(5).

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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

80

 

128     

Remedies in non-pensions cases

(1)   

This section applies to proceedings before a court or employment tribunal on

a complaint relating to a breach of an equality clause, other than a breach with

respect to membership of or rights under an occupational pension scheme.

(2)   

If the court or tribunal finds that there has been a breach of the equality clause,

5

it may—

(a)   

make a declaration as to the rights of the parties in relation to the

matters to which the proceedings relate;

(b)   

order an award by way of arrears of pay or damages in relation to the

complainant.

10

(3)   

The court or tribunal may not order a payment under subsection (2)(b) in

respect of a time before the arrears day.

(4)   

In relation to proceedings in England and Wales, the arrears day is, in a case

mentioned in the first column of the table, the day mentioned in the second

column.

15

 

Case

Arrears day

 
 

A standard case

The day falling 6 years before the day on

 
  

which the proceedings were instituted.

 
 

A concealment case or an

The day on which the breach first

 
 

incapacity case (or a case

occurred.

 

20

 

which is both).

  

(5)   

In relation to proceedings in Scotland, the arrears day is the first day of—

(a)   

the period of 5 years ending with the day on which the proceedings

were commenced, or

(b)   

if the case involves a relevant incapacity, or a relevant fraud or error,

25

the period of 20 years ending with that day.

129     

Remedies in pensions cases

(1)   

This section applies to proceedings before a court or employment tribunal on

a complaint relating to—

(a)   

a breach of an equality rule, or

30

(b)   

a breach of an equality clause with respect to membership of, or rights

under, an occupational pension scheme.

(2)   

If the court or tribunal finds that there has been a breach as referred to in

subsection (1)—

(a)   

it may make a declaration as to the rights of the parties in relation to the

35

matters to which the proceedings relate;

(b)   

it must not order arrears of benefits or damages or any other amount to

be paid to the complainant.

(3)   

Subsection (2)(b) does not apply if the proceedings are proceedings to which

section 130 applies.

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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

81

 

(4)   

If the breach relates to a term on which persons become members of the

scheme, the court or tribunal may declare that the complainant is entitled to be

admitted to the scheme with effect from a specified date.

(5)   

A date specified for the purposes of subsection (4) must not be before 8 April

1976.

5

(6)   

If the breach relates to a term on which members of the scheme are treated, the

court or tribunal may declare that the complainant is, in respect of a specified

period, entitled to secure the rights that would have accrued if the breach had

not occurred.

(7)   

A period specified for the purposes of subsection (6) must not begin before 17

10

May 1990.

(8)   

If the court or tribunal makes a declaration under subsection (6), the employer

must provide such resources to the scheme as are necessary to secure for the

complainant (without contribution or further contribution by the complainant

or other members) the rights referred to in that subsection.

15

130     

Remedies in claims for arrears brought by pensioner members

(1)   

This section applies to proceedings before a court or employment tribunal on

a complaint by a pensioner member of an occupational pension scheme

relating to a breach of an equality clause or rule with respect to a term on which

the member is treated.

20

(2)   

If the court or tribunal finds that there has been a breach referred to in

subsection (1), it may—

(a)   

make a declaration as to the rights of the complainant and the

respondent in relation to the matters to which the proceedings relate;

(b)   

order an award by way of arrears of benefits or damages or of any other

25

amount in relation to the complainant.

(3)   

The court or tribunal must not order an award under subsection (2)(b) in

respect of a time before the arrears day.

(4)   

If the court or tribunal orders an award under subsection (2)(b), the employer

must provide such resources to the scheme as are necessary to secure for the

30

complainant (without contribution or further contribution by the complainant

or other members) the amount of the award.

(5)   

In relation to proceedings in England and Wales, the arrears day is, in a case

mentioned in the first column of the table, the day mentioned in the second

column.

35

 

Case

Arrears day

 
 

A standard case

The day falling 6 years before the day on

 
  

which the proceedings were commenced.

 
 

A concealment case or an

The day on which the breach first

 
 

incapacity case (or a case

occurred.

 

40

 

which is both).

  

(6)   

In relation to proceedings in Scotland, the arrears day is the first day of—

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

82

 

(a)   

the period of 5 years ending with the day on which the proceedings

were commenced, or

(b)   

if the case involves a relevant incapacity, or a relevant fraud or error,

the period of 20 years ending with that day.

131     

Supplementary

5

(1)   

This section applies for the purposes of sections 128 to 130.

(2)   

A standard case is a case which is not—

(a)   

a concealment case,

(b)   

an incapacity case, or

(c)   

a concealment case and an incapacity case.

10

(3)   

A concealment case in relation to an equality clause is a case where—

(a)   

the responsible person deliberately concealed a qualifying fact (as

defined by section 126) from the worker, and

(b)   

the worker commenced the proceedings before the end of the period of

6 years beginning with the day on which the worker discovered (or

15

could with reasonable diligence have discovered) the qualifying fact.

(4)   

A concealment case in relation to an equality rule is a case where—

(a)   

the employer or the trustees or managers of the occupational pension

scheme in question deliberately concealed a qualifying fact (as defined

by section 126) from the member, and

20

(b)   

the member commenced the proceedings before the end of the period

of 6 years beginning with the day on which the member discovered (or

could with reasonable diligence have discovered) the qualifying fact.

(5)   

An incapacity case is a case where the worker or member—

(a)   

had an incapacity when the breach first occurred, and

25

(b)   

commenced the proceedings before the end of the period of 6 years

beginning with the day on which the worker or member ceased to have

the incapacity.

(6)   

A case involves a relevant incapacity or a relevant fraud or error if the period

of 5 years referred to in section 128(5)(a) is, as a result of subsection (7) below,

30

reckoned as a period of more than 20 years.

(7)   

For the purposes of the reckoning referred to in subsection (6), no account is to

be taken of time when the worker or member—

(a)   

had an incapacity, or

(b)   

was induced by a relevant fraud or error to refrain from commencing

35

proceedings (not being a time after the worker or member could with

reasonable diligence have discovered the fraud or error).

(8)   

For the purposes of subsection (7)—

(a)   

a fraud is relevant in relation to an equality clause if it is a fraud on the

part of the responsible person;

40

(b)   

an error is relevant in relation to an equality clause if it is induced by

the words or conduct of the responsible person;

(c)   

a fraud is relevant in relation to an equality rule if it is a fraud on the

part of the employer or the trustees or managers of the scheme;

 
 

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

83

 

(d)   

an error is relevant in relation to an equality rule if it is induced by the

words or conduct of the employer or the trustees or managers of the

scheme.

(9)   

A reference in subsection (8) to the responsible person, the employer or the

trustees or managers includes a reference to a person acting on behalf of the

5

person or persons concerned.

(10)   

In relation to terms of service, a reference in section 128(5) or subsection (3) or

(5)(b) of this section to commencing proceedings is a reference to making a

service complaint.

(11)   

A reference to a pensioner member of a scheme includes a reference to a person

10

who is entitled to the present payment of pension or other benefits derived

through a member.

(12)   

In relation to proceedings before a court—

(a)   

a reference to a complaint is to be read as a reference to a claim, and

(b)   

a reference to a complainant is to be read as a reference to a claimant.

15

Chapter 5

Miscellaneous

132     

Burden of proof

(1)   

This section applies to any proceedings relating to a contravention of this Act.

(2)   

If there are facts from which the court could decide, in the absence of any other

20

explanation, that a person (A) contravened the provision concerned, the court

must hold that the contravention occurred.

(3)   

But subsection (2) does not apply if A shows that A did not contravene the

provision.

(4)   

The reference to a contravention of this Act includes a reference to a breach of

25

an equality clause or rule.

(5)   

This section does not apply to proceedings for an offence under this Act.

(6)   

A reference to the court includes a reference to—

(a)   

an employment tribunal;

(b)   

the Asylum and Immigration Tribunal;

30

(c)   

the Special Immigration Appeals Commission;

(d)   

the First-tier Tribunal;

(e)   

the Special Educational Needs Tribunal for Wales;

(f)   

an Additional Support Needs Tribunal for Scotland.

133     

Previous findings

35

(1)   

A finding in relevant proceedings in respect of an act which has become final

is to be treated as conclusive in proceedings under this Act.

(2)   

Relevant proceedings are proceedings before a court or employment tribunal

under any of the following—

(a)   

section 19 or 20 of the Race Relations Act 1968 (c. 71);

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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

84

 

(b)   

the Equal Pay Act 1970 (c. 41);

(c)   

the Sex Discrimination Act 1975 (c. 65);

(d)   

the Race Relations Act 1976 (c. 74);

(e)   

section 6(4A) of the Sex Discrimination Act 1986 (c. 59);

(f)   

the Disability Discrimination Act 1995 (c. 50);

5

(g)   

Part 2 of the Equality Act 2006 (c. 3);

(h)   

the Employment Equality (Religion and Belief) Regulations 2003 (S.I.

2003/1660);

(i)   

the Employment Equality (Sexual Orientation) Regulations 2003 (S.I.

2003/1661);

10

(j)   

the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031);

(k)   

the Equality Act (Sexual Orientation) Regulations 2007 (S.I. 2007/1263).

(3)   

A finding becomes final—

(a)   

when an appeal against the finding is dismissed, withdrawn or

abandoned, or

15

(b)   

when the time for appealing expires without an appeal having been

brought.

134     

Obtaining information etc.

(1)   

In this section—

(a)   

P is a person who thinks that a contravention of this Act has occurred

20

in relation to P;

(b)   

R is a person who P thinks has contravened this Act.

(2)   

A Minister of the Crown must by order prescribe—

(a)   

forms by which P may question R on any matter which is or may be

relevant;

25

(b)   

forms by which R may answer questions by P.

(3)   

A question by P or an answer by R is admissible as evidence in proceedings

under this Act (whether or not the question or answer is contained in a

prescribed form).

(4)   

A court or tribunal may draw an inference from—

30

(a)   

a failure by R to answer a question by P before the end of the period of

8 weeks beginning with the day on which the question is served;

(b)   

an evasive or equivocal answer.

(5)   

Subsection (4) does not apply if—

(a)   

R reasonably asserts that to have answered differently or at all might

35

have prejudiced a criminal matter;

(b)   

R reasonably asserts that to have answered differently or at all would

have revealed the reason for not commencing or not continuing

criminal proceedings;

(c)   

R’s answer is of a kind specified for the purposes of this paragraph by

40

order of a Minister of the Crown;

(d)   

R’s answer is given in circumstances specified for the purposes of this

paragraph by order of a Minister of the Crown;

(e)   

R’s failure to answer occurs in circumstances specified for the purposes

of this paragraph by order of a Minister of the Crown.

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