|
| |
|
126 | Section 125: supplementary |
| |
(1) | This section applies for the purposes of section 125. |
| |
(2) | A standard case is a case which is not— |
| |
| |
| 5 |
(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 |
| |
| |
(a) | the responsible person deliberately concealed a qualifying fact from the |
| |
| |
(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 |
| |
| |
(a) | the employer or the trustees or managers of the occupational pension |
| |
scheme in question deliberately concealed a qualifying fact from the |
| 20 |
| |
(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 |
| 25 |
(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 |
| 30 |
| |
| |
(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. |
| 35 |
(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, |
| |
| 40 |
(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 |
| 45 |
during the period of 6 months beginning with the later of— |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(b) | who is neither a member of the Council of ACAS nor one of its officers |
| |
| |
(9) | “Job evaluation study” has the meaning given in section 77(5). |
| 45 |
|
| |
|
| |
|
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 |
| |
(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 |
| |
| 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 |
| |
| 15 |
| | | | | | | The day falling 6 years before the day on |
| | | | | which the proceedings were instituted. |
| | | | | The day on which the breach first |
| | | | incapacity case (or a case |
| | | 20 | | | | | |
|
(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 |
| |
| |
(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) | 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 |
| |
| |
(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 |
| |
| 40 |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| |
(7) | A period specified for the purposes of subsection (6) must not begin before 17 |
| 10 |
| |
(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 |
| |
| 20 |
(2) | If the court or tribunal finds that there has been a breach referred to in |
| |
| |
(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 |
| |
| 35 |
| | | | | | | The day falling 6 years before the day on |
| | | | | which the proceedings were commenced. |
| | | | | The day on which the breach first |
| | | | incapacity case (or a case |
| | | 40 | | | | | |
|
(6) | 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 |
| |
| |
(b) | if the case involves a relevant incapacity, or a relevant fraud or error, |
| |
the period of 20 years ending with that day. |
| |
| 5 |
(1) | This section applies for the purposes of sections 128 to 130. |
| |
(2) | A standard case is a case which is not— |
| |
| |
(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 |
| |
| |
(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; |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
| |
(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 |
| |
| |
(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. |
| |
| 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); |
| 40 |
|
| |
|
| |
|
(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. |
| |
| |
(i) | the Employment Equality (Sexual Orientation) Regulations 2003 (S.I. |
| |
| 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 |
| |
| 15 |
(b) | when the time for appealing expires without an appeal having been |
| |
| |
134 | Obtaining information etc. |
| |
| |
(a) | P is a person who thinks that a contravention of this Act has occurred |
| 20 |
| |
(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 |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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. |
| 45 |
|
| |
|