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99

 

House of Commons

 
 

Wednesday 2 December 2009

 

Consideration of Bill

 

Equality Bill


 

New Clauses

 

Enquiries about disability and health

 

Ms Harriet Harman

 

NC40

 

To move the following Clause:—

 

‘(1)    

This section applies where—

 

(a)    

a person (A) does not proceed with an application by another person (B)

 

for work, after asking about B’s health but before making a relevant

 

decision, and

 

(b)    

B brings proceedings before an employment tribunal on a complaint that

 

A’s conduct in relation to B’s application is a contravention of a relevant

 

disability provision.

 

(2)    

In the application of section 132 to the proceedings, the circumstances described

 

in subsection (1)(a) are to be treated for the purposes of subsection (2) of that

 

section as facts from which the tribunal could decide that A contravened the

 

provision.

 

(3)    

The reference in subsection (1)(a) to making a relevant decision is—

 

(a)    

if A requires applicants to undergo one or more assessments, a reference

 

to deciding in the light of the first assessment which applications to

 

proceed with, or

 

(b)    

in any other case, a reference to deciding to whom to offer the work

 

(whether by a conditional or unconditional offer).

 

(4)    

An assessment is an interview or other process designed to give an indication of

 

a person’s suitability for the work concerned; but a condition to undergo an

 

assessment is not to be regarded as a condition for the purposes of subsection

 

(3)(b).

 

(5)    

This section does not apply to a question that A asks in so far as asking the

 

question is necessary for the purpose of—

 

(a)    

establishing whether a duty to make reasonable adjustments is or will be

 

imposed on A in relation to B in connection with a requirement to

 

undergo an assessment,

 

(b)    

monitoring diversity in the range of persons applying to A for work,

 

(c)    

taking action to which section 154 would apply if references in that

 

section to persons who share (or do not share) a protected characteristic


 
 

Consideration of Bill: 2 December 2009                  

100

 

Equality Bill, continued

 
 

were references to disabled persons (or persons who are not disabled) and

 

the reference to the characteristic were a reference to disability, or

 

(d)    

if A applies in relation to the work a requirement to have a particular

 

disability, establishing whether B has that disability.

 

(6)    

Subsection (5)(d) applies only if A shows that, having regard to the nature or

 

context of the work—

 

(a)    

the requirement is an occupational requirement, and

 

(b)    

the application of the requirement is a proportionate means of achieving

 

a legitimate aim.

 

(7)    

“Work” means employment, contract work, a position as a partner, a position as

 

a member of an LLP, a pupillage or tenancy, being taken as a devil, membership

 

of a stable, an appointment to a personal or public office, or the provision of an

 

employment service; and the reference in subsection (3)(b) to deciding to whom

 

to offer work is, in relation to contract work, to be read as a reference to deciding

 

who to allow to do the work.

 

(8)    

The following, so far as relating to discrimination within section 13 because of

 

disability, are relevant disability provisions—

 

(a)    

section 37(1)(a) or (c);

 

(b)    

section 39(1)(b);

 

(c)    

section 42(1)(a) or (c);

 

(d)    

section 43(1)(a) or (c);

 

(e)    

section 45(1)(a) or (c);

 

(f)    

section 46(1)(a) or (c);

 

(g)    

section 47(3)(a) or (c);

 

(h)    

section 48(3)(a) or (c);

 

(i)    

section 49(1);

 

(j)    

section 53(1)(a) or (c).

 

(9)    

For the purposes of this section, whether or not a person has a disability is to be

 

regarded as an aspect of that person’s health.

 

(10)    

This section does not apply to anything done for the purpose of vetting applicants

 

for work for reasons of national security.

 

(11)    

Asking about the health of an applicant for work is not of itself a contravention

 

of this Act by virtue of section 13 (although action taken in reliance on the

 

information given in response may be).’.

 


 

Irrelevance of alleged discriminator’s characteristics

 

Ms Harriet Harman

 

NC41

 

To move the following Clause:—

 

‘(1)    

For the purpose of establishing a contravention of this Act by virtue of section

 

13(1), it does not matter whether A has the protected characteristic.

 

(2)    

For the purpose of establishing a contravention of this Act by virtue of section

 

14(1), it does not matter—

 

(a)    

whether A has one of the protected characteristics in the combination;


 
 

Consideration of Bill: 2 December 2009                  

101

 

Equality Bill, continued

 
 

(b)    

whether A has both.’.

 


 

Adjustments to common parts in Scotland

 

Ms Harriet Harman

 

NC42

 

To move the following Clause:—

 

‘(1)    

The Scottish Ministers may by regulations provide that a disabled person is

 

entitled to make relevant adjustments to common parts in relation to premises in

 

Scotland.

 

(2)    

The reference in subsection (1) to a disabled person is a reference to a disabled

 

person who—

 

(a)    

is a tenant of the premises,

 

(b)    

is an owner of the premises, or

 

(c)    

is otherwise entitled to occupy the premises,

 

    

and uses or intends to use the premises as the person’s only or main home.

 

(3)    

Before making regulations under subsection (1) the Scottish Ministers must

 

consult a Minister of the Crown.

 

(4)    

Regulations under subsection (1) may, in particular—

 

(a)    

prescribe things which are, or which are not, to be treated as relevant

 

adjustments;

 

(b)    

prescribe circumstances in which the consent of an owner of the common

 

parts is required before a disabled person may make an adjustment;

 

(c)    

provide that the consent to adjustments is not to be withheld

 

unreasonably;

 

(d)    

prescribe matters to be taken into account, or to be disregarded, in

 

deciding whether it is reasonable to consent to adjustments;

 

(e)    

prescribe circumstances in which consent to adjustments is to be taken to

 

be withheld;

 

(f)    

make provision about the imposition of conditions on consent to

 

adjustments;

 

(g)    

make provision as to circumstances in which the sheriff may make an

 

order authorising a disabled person to carry out adjustments;

 

(h)    

make provision about the responsibility for costs arising (directly or

 

indirectly) from an adjustment;

 

(i)    

make provision about the reinstatement of the common parts to the

 

condition they were in before an adjustment was made;

 

(j)    

make provision about the giving of notice to the owners of the common

 

parts and other persons;

 

(k)    

make provision about agreements between a disabled person and an

 

owner of the common parts;

 

(l)    

make provision about the registration of information in the Land Register

 

of Scotland or the recording of documents in the Register of Sasines

 

relating to an entitlement of a disabled person or an obligation on an

 

owner of the common parts;

 

(m)    

make provision about the effect of such registration or recording;


 
 

Consideration of Bill: 2 December 2009                  

102

 

Equality Bill, continued

 
 

(n)    

make provision about who is to be treated as being, or as not being, a

 

person entitled to occupy premises otherwise than as tenant or owner.

 

(5)    

In this section—

 

“common parts” means, in relation to premises, the structure and exterior of,

 

and any common facilities within or used in connection with, the building

 

or part of a building which includes the premises but only in so far as the

 

structure, exterior and common facilities are not solely owned by the

 

owner of the premises;

 

“relevant adjustments” means, in relation to a disabled person, alterations or

 

additions which are likely to avoid a substantial disadvantage to which

 

the disabled person is put in using the common parts in comparison with

 

persons who are not disabled.’.

 


 

Royal marriages (prevention of religious discrimination)

 

Dr Evan Harris

 

NC1

 

To move the following Clause:—

 

‘(1)    

The Bill of Rights (1688 1 Will. & Mar. Sess. 2 c. 2) is amended as follows.

 

(2)    

In section 1, the paragraph starting “Upon which their said Majestyes did accepte

 

the crowne”, omit the words “or shall marry a papist” and “or marrying”.

 

(3)    

The Act of Settlement 1700 is amended as follows.

 

(4)    

In section 2 (The persons inheritable by this Act, holding communion with the

 

church of Rome, incapacitated as by the former Act, to take the oath at their

 

coronation, according to Stat 1, W & M c. 6), omit the words “or shall marry a

 

papist”.

 

(5)    

The Union with Scotland Act 1706 (c. 11) is amended as follows.

 

(6)    

In Article II (succession to the monarchy), omit the words “and persons marrying

 

papists” and the words “or person marrying a papist”.

 

(7)    

The Union with England Act 1707 (c. 7) is amended as follows.

 

(8)    

In Article II, omit the words “and persons marrying papists” and the words “or

 

person marrying a papist”.

 

(9)    

The Royal Marriages Act 1772 (c. 11) is repealed.

 

(10)    

Within one year of Royal Assent to this Act the Secretary of State shall consult

 

governments of constitutional monarchies under Her Majesty within the

 

Commonwealth on the provisions of this section.

 

(11)    

Subject to subsection (14), this section comes into force on such a day as the

 

Secretary of State may by order appoint.

 

(12)    

No order may be made under this section before the Secretary of State has carried

 

out consultations pursuant to subsection (10).

 

(13)    

For the avoidance of doubt this section does not affect the validity of any

 

succession to the Crown which occurred before the date on which this section

 

comes into force.

 

(14)    

This section affects the order of succession to the Crown in the event of the death

 

of Her present Majesty.

 

(15)    

The Secretary of State shall make an order under this section within three years

 

of Royal Assent to this Act.


 
 

Consideration of Bill: 2 December 2009                  

103

 

Equality Bill, continued

 
 

(16)    

This section extends to the United Kingdom only.’.

 


 

Succession to the Crown (prevention of sex discrimination)

 

Dr Evan Harris

 

Lynne Featherstone

 

NC2

 

To move the following Clause:—

 

‘(1)    

In determining the line of succession to the Crown and to all rights, privileges and

 

dignities belonging thereto, no account shall be taken of gender, notwithstanding

 

any previous custom or rule of law to the contrary.

 

(2)    

This section is subject to the Act of Settlement 1700.

 

(3)    

Within one year of Royal Assent to this Act the Secretary of State shall consult

 

governments of constitutional monarchies under Her Majesty within the

 

Commonwealth on the provisions of this section.

 

(4)    

Subject to subsection (7), this section comes into force on such a day as the

 

Secretary of State may by order appoint.

 

(5)    

No order may be made under this section before the Secretary of State has carried

 

out consultations pursuant to subsection (3).

 

(6)    

For the avoidance of doubt this section does not affect the validity of any

 

succession to the Crown which occurred before the date on which this section

 

comes into force.

 

(7)    

This section affects the order of succession to the Crown in the event of the death

 

of Her present Majesty.

 

(8)    

The Secretary of State shall make an order under this section within three years

 

of Royal Assent to this Act.

 

(9)    

This section extends to the United Kingdom only.’.

 


 

Mandatory pay audits

 

Lynne Featherstone

 

Dr Evan Harris

 

John McDonnell

 

Jeremy Corbyn

 

NC3

 

To move the following Clause:—

 

‘(1)    

Within six months of the day on which this Act is passed the Secretary of State

 

shall by regulations require designated employers to conduct a pay audit and to

 

publish information relating to the pay of its employees for the purpose of

 

showing whether there are differences in the pay of male and female employees.

 

(2)    

Without prejudice to the generality of subsection (1) regulations made pursuant

 

to subsection (1) shall require designated employers to publish information

 

including—


 
 

Consideration of Bill: 2 December 2009                  

104

 

Equality Bill, continued

 
 

(a)    

the average hourly pay of male workers and the average hourly pay of

 

female workers within its employment;

 

(b)    

in respect of each role within the organisation—

 

(i)    

the average pay awarded to workers engaged in the role;

 

(ii)    

the percentage of men and women engaged in that role;

 

(iii)    

the gap, if any, between the average hourly pay of male and

 

female employees in that role; and

 

(iv)    

the average length of service of men and women engaged in that

 

role; and

 

(c)    

information identifying—

 

(i)    

any description of activities carried out in the course of

 

employment with the employer by any group of workers who are

 

wholly or mainly women;

 

(ii)    

any descriptions of activities carried out in the course of

 

employment with the employer by any group of workers who are

 

wholly or mainly men;

 

(iii)    

the relative values of the descriptions of activities falling within

 

paragraph (c)(i) and paragraph (c)(ii); and

 

(iv)    

in relation to descriptions of activities within subsection (c)(i)

 

and subsection (c)(ii) which are judged to be of equal value to

 

each other, the average hourly pay of male workers and average

 

hourly pay of female workers carrying on those activities.

 

(3)    

For the purposes of this section, “pay” means the ordinary basic or minimum

 

wage or salary and any other consideration, whether in cash or kind, which the

 

worker receives directly or indirectly, in respect of his employment, from his

 

employer and includes the cost to the employer of—

 

(a)    

any pensions contributions paid by the employer in respect of the worker,

 

(b)    

any bonus or other performance related or incentive payment, and

 

(c)    

any discretionary benefit granted to a worker in connection with his or

 

her employment.

 

(4)    

Without prejudice to the generality of subsection (1) regulations made pursuant

 

to that subsection shall specify the process which an employer must follow in

 

conducting a pay audit, the form in which the information must be published, and

 

the degree and means of publicity to be made.

 

(5)    

In making regulations pursuant to subsection (1) the Secretary of State shall adopt

 

best practice for promoting awareness of the nature and causes of any pay gap

 

between persons of different genders as set out by the International Labour

 

Organisation from time to time.

 

(6)    

The Secretary of State shall consult with the Equality and Human Rights

 

Commission as to how to ensure that the regulations shall reflect best practice

 

prior to the making of the first regulations and no less than every five years

 

thereafter and shall amend the regulations as necessary to ensure that best practice

 

is maintained.

 

(7)    

Without prejudice to the generality of subsection (1) regulations made pursuant

 

to that subsection shall provide that where an employer fails to publish

 

information as required by regulations made pursuant to subsection (1) an

 

employer shall not be entitled to submit a material factor defence in accordance

 

with section 66 in relation to any period for which they are in breach of their

 

obligations under those regulations.

 

(8)    

Where the information published by an employer reveals that there is a difference

 

in the average pay of men and women doing relevant types of work as set out in

 

section 61, then in any proceedings to enforce a sex equality rule or sex equality


 
 

Consideration of Bill: 2 December 2009                  

105

 

Equality Bill, continued

 
 

clause it shall be presumed that there is such a breach unless the employer can

 

show a material factor defence.

 

(9)    

Regulations made pursuant to subsection (1) may make provision for a failure to

 

comply with the regulations—

 

(a)    

to be an offence punishable on summary conviction by a fine not

 

exceeding level 5 on the standard scale;

 

(b)    

to be enforced, otherwise than as an offence, by such means as is

 

prescribed.

 

(10)    

The reference to a failure to comply with the regulations includes a reference to

 

a failure by a person acting on behalf of an employer.

 

(11)    

Regulations made pursuant to subsection (1) shall provide that an employer must

 

conduct a pay audit and publish information relating to the pay of its employees

 

within six months of the coming into force of the regulations.

 

(12)    

Regulations made pursuant to subsection (1) shall provide that where an

 

employer (A) is able to determine the terms and conditions of employment as

 

between another employer (B) and its employees, A shall publish the information

 

that B would otherwise be required to publish in a way which is consolidated with

 

the information for all other employees of A whose terms and conditions A may

 

determine, and where A publishes consolidated information B shall not be in

 

breach of those regulations if it does not publish any information.

 

(13)    

A designated employer means an employer who has more than 100 employees.

 

(14)    

Regulations made pursuant to subsection (1) shall require designated employers

 

publishing information in relation to the average hourly pay of employees to

 

specify how much of the hourly rate constitutes ordinary basic or minimum wage

 

or salary and how much, if any, constitutes other consideration and to specify the

 

types and amounts of any such other consideration.’.

 


 

Representative actions in equal pay claims

 

Lynne Featherstone

 

Dr Evan Harris

 

John McDonnell

 

Jeremy Corbyn

 

NC4

 

To move the following Clause:—

 

‘(1)    

The Secretary of State must make regulations to permit the Equality and Human

 

Rights Commission or a registered trade union to apply to a court or tribunal as

 

appropriate for a representative action order in relation to a defined class of

 

persons (“the class”) who would benefit from the litigation of rights, or common

 

issues in relation to rights that members of the class may have as a result of the

 

provisions of this Act.

 

(2)    

The regulations shall make rules in relation to the making and termination of a

 

representative action order and its conduct.

 

(3)    

Such rules shall provide for hearings to be conducted in private when it is

 

necessary for the issues between the members of the class and the Equality and

 

Human Rights Commission or a registered trade union to be resolved and those

 

issues are subject to legal professional privilege shared by members of the class.

 

(4)    

Such rules shall make provision for the hearing of any issue as defined in

 

subsection (3) to be undertaken and managed by a different judge or tribunal from


 
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