Equality Bill - continued          House of Commons

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Background

268.     This clause replaces the current provisions on “unfair maternity provisions” in paragraph 5 of Schedule 5 to the Social Security Act 1989 and replicates aspects of Regulations 9 and 18A of the Maternity and Parental Leave etc Regulations 1999.

Examples

  • A woman who is on maternity leave will be entitled to continuing membership of the scheme throughout the period of maternity leave whether or not she is paid.

  • A woman who is paid whilst on maternity leave will be entitled to accrue rights in a scheme as though she were paid her usual salary but she will only be required to make contributions based on her actual pay.

Clause 73: Exclusion of pregnancy and maternity discrimination provisions

Effect

269.     This clause provides that the pregnancy and maternity discrimination provisions of the Bill do not apply where a maternity clause or rule operates.

270.     The maternity discrimination provisions prohibit discrimination in relation to non-contractual pay and benefits such as promotion, transfer and training and in relation to offers of employment or appointment.

271.     The maternity equality clause provisions operate only in relation to terms of a contract of employment, the terms of appointment to a personal or public office and the terms of service of members of the armed forces and do so by including an equality clause to modify terms governing maternity-related pay.

Background

272.     This provision explains the relationship between the two sets of provisions and is intended to ensure that they provide seamless protection against pregnancy and maternity-related inequality.

Example

  • A woman who is line for promotion tells her employer that she is pregnant. The employer tells the woman he will not promote her because she is likely to be absent on maternity leave during a very busy period. This will be direct pregnancy discrimination.

Clause 74: Discussions with colleagues

Effect

273.     This clause is designed to protect people who discuss their pay with colleagues (as defined in clause 76) with a view to finding out if differences exist that are related to a protected characteristic. Any action taken against them by the employer as a result of doing so is treated as victimisation, as defined in clause 26, as applied in the clauses listed in the table.

274.     Terms of employment or appointment that prevent or restrict people from disclosing their pay to their colleagues are made unenforceable to the extent that they would prevent or restrict such a discussion.

Background

275.     This clause is new. It is intended to ensure that there is greater transparency and dialogue within workplaces about pay.

Examples

  • A female employee thinks she is underpaid compared with a male colleague. She asks him what he is paid, and he tells her. The employer takes disciplinary action against the man as a result. The man can bring a claim for victimisation against the employer for disciplining him.

  • A female employee discloses her pay to one of her employer’s competitors in breach of a confidentiality clause in her contract. The employer could take action against her in relation to that breach.

Clause 75: Gender pay gap information

Effect

276.     This clause enables a Minister of the Crown to make regulations requiring private and voluntary sector employers with at least 250 employees in Great Britain to publish information about the differences in pay between their male and female employees. The regulations may specify, among other things, the form and timing of the publication, which will be no more frequently than annually. The regulations may also specify penalties for non-compliance. Employers who do not comply with the publication requirements could face civil enforcement procedures or be liable for a criminal offence, punishable by a fine of up to £5,000.

Background

277.     This is a new provision. The Government wants large private and voluntary sector employers in Great Britain to publish information on what they pay their male and female employees, so that their gender pay gap (the size of the difference between men and women’s pay expressed as a percentage) is in the public domain.

278.     The Government’s aim is for employers regularly to publish such information on a voluntary basis. To give voluntary arrangements time to work, the Government does not intend to make regulations under this power before April 2013. The power would then be used only if sufficient progress on reporting had not been made by that time.

Clause 76: Colleagues

Effect

279.     This clause sets out the circumstances in which employees and others are taken to be colleagues for the purposes of Chapter 3. A person who claims the benefit of a sex equality clause or sex equality rule must be able to show their work is equal to that of a colleague. The application of Article 141 of the Treaty of Rome, which has direct effect, will ensure that existing case law on the breadth of possible comparisons is carried forward, so that, for example, in relevant circumstances the concept of colleagues will include former colleagues.

280.     If two persons share the same employer and work at the same establishment, they are colleagues.

281.     If two persons work at different establishments but share the same employer and common terms and conditions of employment apply, they are colleagues.

282.     A person can also be a colleague of another in either of the above circumstances if one is employed by a company associated with the other’s employer. The clause defines when employers are taken to be associated.

283.     A person holding a personal or public office is the colleague of another person holding a personal or public office if the same person is responsible for paying both of them.

284.     A person holding the office of constable is treated for the purposes of Chapter 3 as holding a personal office for the purpose of determining who can be that person’s colleague.

285.     The clause also defines when staff of the Houses of Parliament are taken to be colleagues.

Background

286.     These provisions generally reflect the effect of provisions in current legislation.

Examples

  • A woman is employed by a company at a factory. A man works for the same company at another factory. Common terms of employment apply at both establishments. The woman and man are colleagues.

Clause 77: Interpretation and exceptions

Effect

287.     This clause explains the meaning of terms used in Chapter 3. It also gives effect to Schedule 7 which sets out exceptions to the equality of terms provisions.

Chapter 4: Supplementary

Clause 78: Ships and hovercraft

Effect

288.     This clause provides that the employment provisions in Part 5 will apply to seafarers and the crew of hovercraft only in the way set out in regulations made by a Minister of the Crown.

Background

289.     The Bill is silent on the territorial application of the employment provisions. While this approach is acceptable for most workers, who at any given time are within either the territory of United Kingdom or some other territory, seafarers work on ships that may be constantly moving between waters under the jurisdiction of different States. This clause will allow the Minister to say to which seafarers on which ships, and to which crew on which hovercraft, the employment provisions apply in accordance with international law and custom and the global practices of the shipping industry. The Minister may make provision with regard to ships outside Great Britain.

290.     This clause replaces provisions concerning the territorial application and the pay of seafarers in current legislation.

Clause 79: Offshore work

Effect

291.     This clause contains a power to make an Order in Council in relation to work on board offshore installations. The power may be used to apply Part 5 (with or without modification) to those working on such installations. The power may also be used in relation to any corresponding Northern Ireland legislation (with or without modification).

Background

292.     This clause will enable protection to be extended to workers on offshore installations, such as oil and gas rigs and renewable energy installations (generally wind farms), to reflect the extent of current discrimination legislation.

Example

  • Offshore workers are typically workers (either employees, contract workers, partners, members of an LLP, or personal or public office holders) on oil and gas rigs located in the sea within the area of the United Kingdom Continental Shelf (UKCS), and on renewable energy installations (generally wind farms) within the part of the UKCS known as the Renewable Energy Zone.

Clause 80: Interpretation and exceptions

Effect

293.     This clause explains the meaning of various terms used in Part 5 of the Bill. In particular, it defines what is meant by “employment” and provides that people serving in the armed forces and people who work for the Crown and in the Houses of Commons and Lords are to be regarded as employed for the purposes of this Part of the Bill.

PART 6: EDUCATION

Chapter 1: Schools

Clause 81: Application of this Chapter

Effect

294.     This clause provides that this Chapter of the Bill, which prohibits discrimination, harassment and victimisation in the field of education in schools, does not apply to discrimination or harassment of people in those circumstances because of age, marriage and civil partnership or pregnancy and maternity.

Background

295.     This replicates the position in current legislation.

Examples

  • It is not unlawful discrimination for a school to organise a trip for pupils in one year group, but not for pupils in other years.

  • It is not unlawful discrimination for a school to allow older pupils to have privileges for which younger pupils are not eligible, such as more choice of uniform or the right to leave school during the lunch period.

Clause 82: Pupils: admission and treatment, etc.

Effect

296.     This clause makes it unlawful for the responsible body of a school to discriminate against, harass or victimise a pupil or prospective pupil in relation to the terms on which it offers him or her admission, by not admitting him or her, or in the way it treats the pupil once admitted. The responsible body for a maintained school is the local authority or the governing body, and for an independent educational institution or a non-maintained special school is the proprietor.

297.     It also imposes on the responsible body of a school the duty to make reasonable adjustments for disabled pupils and prospective disabled pupils.

298.     However, the prohibition on harassment of pupils or prospective pupils does not cover gender reassignment, sexual orientation or religion or belief.

Background

299.     This clause is primarily designed to replicate the effect of provisions in current legislation applying to schools. In addition, it extends protection from discrimination to transsexual pupils.

Examples

  • A school refuses to let a gay pupil become a prefect because of his sexual orientation. This would be direct discrimination.

  • A selective school imposes a higher standard for admission to applicants from an ethnic minority background, or to girls. This would be direct discrimination.

  • A pupil alleges, in good faith, that his school has discriminated against him because of his religion (for example claiming that he is given worse marks than other pupils because he is Jewish), so the school punishes him by making him do a detention. This would be victimisation.

  • A teacher ridicules a particular pupil in class because of his disability, or makes comments which have the result of making the girls in the class feel embarrassed and humiliated. This would be harassment.

Clause 83: Victimisation of pupils, etc. for the conduct of parents, etc.

Effect

300.     This clause protects children in schools from being victimised as a result of a protected act (such as making or supporting a complaint of discrimination) done by their parent or sibling. The aim is to prevent parents being discouraged from raising an issue of discrimination with a school because of worry that their child may suffer retaliation as a result.

301.     Where a parent or sibling maliciously makes or supports an untrue complaint, the child is still protected from victimisation, as long as the child has acted in good faith. But, in common with the general approach to victimisation, where a child has acted in bad faith, he or she is not protected, even where a parent or sibling makes or supports an untrue complaint in good faith.

Background

302.     This clause is designed to replicate the effect of provisions in the Disability Discrimination Act 1995 and extend the protection to cover all characteristics protected under this Chapter.

Examples

  • The parent of a pupil complains to the school that her daughter is suffering sex discrimination by not being allowed to participate in a metalwork class. The daughter is protected from being treated less favourably by the school in any way because of this complaint.

  • A pupil brings a case against his school claiming that he has suffered discrimination by a member of staff because of his sexual orientation. The pupil’s younger brother, at the same school, is protected against any less favourable treatment by the school because of this case, even if it is later found that the older brother was not acting in good faith.

Clause 84: Application of certain powers under Education Act 1996

Effect

303.     This clause enables the Secretary of State to give directions, using powers under the Education Act 1996, to require a maintained school or a non-maintained special school to comply with its duties under clause 82. It enables the Secretary of State to require a school to stop a discriminatory practice or policy even if no complaint has been brought by an individual pupil or prospective pupil.

Background

304.     Sections 496 and 497 of the Education Act 1996 empower the Secretary of State to give directions to local education authorities and to governing bodies of maintained schools to prevent them exercising their functions under the Education Acts unreasonably, or to require them to perform statutory duties where they are not doing so. This power has already been extended to require compliance with the law on sex discrimination, and this clause extends those powers to all the protected characteristics covered by clause 82.

Example

  • The governing body of a school refuses as a matter of policy to let disabled pupils participate in school trips because of the extra risk management required. The Secretary of State could direct the governing body to change its policy so as to make reasonable adjustments to enable disabled pupils to participate.

Clause 85: Disabled pupils: accessibility

Effect

305.     This clause introduces Schedule 10 which requires local authorities and schools to prepare and implement accessibility strategies and plans. These will increase disabled pupils’ access to the curriculum and improve the physical environment and the provision of information. They are explained in more detail in the notes to that Schedule.

Clause 86: Interpretation and exceptions

Effect

306.     This clause explains what is meant by terms used in this Chapter, such as “school” and “pupil”. It also makes it clear that the prohibitions in the Chapter do not apply to anything done in relation to the content of the school curriculum. This ensures that the Bill does not inhibit the ability of schools to include a full range of issues, ideas and materials in their syllabus and to expose pupils to thoughts and ideas of all kinds. The way in which the curriculum is taught is, however, covered by the reference to education in clause 82(2)(a), so as to ensure issues are taught in a way which does not subject pupils to discrimination. This clause also gives effect to Schedule 11 which provides some exceptions to the provisions in this Chapter.

Background

307.     This clause is designed to replicate the effect of an exception relating to discrimination because of religion or belief in the Equality Act 2006, and extends it to other protected characteristics.

Examples

  • A school curriculum includes teaching of evolution in science lessons. This would not be religious discrimination against a pupil whose religious beliefs include creationism.

  • A school curriculum includes The Taming of the Shrew on the syllabus. This would not be discrimination against a girl.

Chapter 2: Further and higher education

Clause 87: Application of this Chapter

Effect

308.     This clause provides that this Chapter of the Bill, which prohibits discrimination, harassment and victimisation in the field of education in institutions providing further and higher education, does not make it unlawful to discriminate against or harass people in those circumstances because of marriage or civil partnership status.

Background

309.     This clause is designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

Clause 88: Students: admission and treatment, etc.

Effect

310.     This clause makes it unlawful for universities, colleges and other institutions in the higher and further education sectors to discriminate against, harass or victimise a student or someone who wants to become a student in relation to the arrangements it makes in deciding who to admit, the terms on which a person is admitted and the way a person is treated when admitted.

311.     It also imposes on the responsible body of such an institution the duty to make reasonable adjustments for disabled students and prospective students.

Background

312.     This replicates the position in current legislation.

Examples

  • A college refuses admission to a man who applies to be a student, because he is gay. This would be direct discrimination.

  • A university refuses to provide residential accommodation to Jewish or Muslim students. This would be direct discrimination.

  • A college puts an age limit on access to a particular course. This would be direct discrimination, unless the college could show that the age limit was objectively justified.

Clause 89: Further and higher education courses

Effect

313.     This clause makes it unlawful for local authorities securing further and higher education, and maintained schools providing further education, to discriminate against, harass or victimise a person in relation to deciding who to enrol, or in the way it provides any services when the person has been enrolled. It also imposes on them the duty to make reasonable adjustments when offering such facilities and services to disabled people.

Background

314.     This clause is designed to replicate the effect of provisions in the Disability Discrimination Act 1995, and to extend protection to all the protected characteristics covered by this Chapter.

Example

  • A school puts on a 10-week evening educational course for local adults but prevents applicants from enrolling who are disabled or gay. This would be direct discrimination.

Clause 90: Recreational or training facilities

Effect

315.     This clause makes it unlawful for local authorities providing any recreational or training facilities to discriminate against, harass or victimise a person in terms of deciding who should be provided with any facilities and the terms on which the facilities are provided. It also imposes on them the duty to make reasonable adjustments when offering such facilities and services to disabled people.

316.     The recreational and training facilities concerned are those provided in England under sections 507A or 507B of the Education Act 1996 and include things like centres, parks and sports facilities.

Background

317.     These provisions are designed to replicate the effect of provisions in the Disability Discrimination Act 1995 and to extend protection to all the protected characteristics covered by this Chapter.

Example

  • A local authority which puts on a summer camp for children from local schools refuses an application from a child simply because that child is disabled or a Muslim. This would be direct discrimination.

Clause 91: Interpretation and exceptions

Effect

318.     This clause explains what is meant by terms used in this Chapter, such as “student” and “university”. It also makes it clear that the prohibitions in the Chapter do not apply to anything done in relation to the content of the curriculum. This ensures that the Bill does not inhibit the ability of institutions in the higher and further education sectors to include a full range of issues, ideas and materials in their syllabus and to expose students to thoughts and ideas of all kinds. The way in which the curriculum is taught is, however, covered by the reference to education in clause 88(2)(a), so as to ensure issues are taught in a way which does not subject students to discrimination or harassment.

319.     It also gives effect to Schedule 12 which provides exceptions to the provisions in this Chapter.

Background

320.     These provisions are new, but are based on an exception relating to discrimination because of religion or belief in education in schools in the Equality Act 2006, and explicitly extend it to education in higher and further education institutions across all the protected characteristics covered by this Chapter.

Examples

  • A college course includes a module on feminism. This would not be discrimination against a male student.

  • A university requires students to use a computer for projects or essays. This would not be indirect discrimination against a member of a sect which rejects the use of modern technology.

Chapter 3: General qualifications bodies

Clause 92: Application of this Chapter

Effect

321.     This clause provides that this Chapter of the Bill, which prohibits discrimination, harassment and victimisation by qualifications bodies, does not make it unlawful for such bodies to discriminate against or harass people in the circumstances covered because of marriage or civil partnership status.

Background

322.     This clause is designed to replicate the effect of similar provisions in current legislation subject to modifications that include placing a responsibility on the appropriate regulator.

Clause 93: Qualifications bodies

Effect

323.     This clause makes it unlawful for a qualifications body to discriminate against, harass or victimise a person in the arrangements it makes for deciding on whom to confer qualifications, and the terms on which those qualifications are conferred. Qualifications bodies are defined in clause 94.

324.     It also places a duty on qualifications bodies to make reasonable adjustments for disabled people. The clause includes a power for the Secretary of State, Scottish Ministers and Welsh Ministers to designate an “appropriate regulator”, which may then specify matters which are not subject to the reasonable adjustments duty. For example, it could be specified that the requirement to achieve a particular mark to gain a particular qualification is not subject to reasonable adjustments. The appropriate regulator may also specify which reasonable adjustments should not be made. For example, it may be appropriate to allow additional time to complete the exam or to provide a reader, but not to give an exemption from part of an exam. In doing so, the appropriate regulator must have regard to the need to ensure disabled candidates are not disadvantaged, and the need to maintain the integrity and public confidence in the qualification. It is important the disabled candidate knows that his or her qualification will be as highly regarded as other people’s qualifications, and will not be regarded as inferior because reasonable adjustments have been made. Before specifying any such matter, the regulator must consult anyone it thinks appropriate and it must publish the specified matters.

 
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Prepared: 19 November 2009