Equality Bill - continued          House of Commons

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Background

375.     This provision replaces similar provisions in the current legislation.

Chapter 2: Civil courts

Clause 110: Jurisdiction

Effect

376.     This clause sets out what types of claims under the Bill a county court or (in Scotland) the sheriff court has jurisdiction to hear. These are claims related to provision of services, the exercise of public functions, disposal and management of premises, education (other than in relation to disability), and associations.

377.     There is a presumption that a judge or sheriff will appoint an assessor to assist the court when hearing discrimination cases. However, an assessor need not be appointed where there are good reasons not to (for example, after an assessment of the judge’s own level of experience, the nature of the case and the wishes of the claimant).

Background

378.     This clause is designed to replicate the effect of provisions in current legislation. However, for the first time the Bill enables disability discrimination in schools cases in Scotland to be heard in the Additional Support Needs Tribunals (Scotland) rather than the sheriff courts, where they are heard at present.

379.     Currently, two assessors sit with judges in cases involving race and sex discrimination only. This clause extends the requirement to have assessors for cases of discrimination based on any protected characteristic, such as sexual orientation or religion or belief, but reduces the number of assessors used in each case to one.

Examples

  • A woman has joined a golf club but, because she is a woman, she is allowed to play golf only on Tuesday afternoons and is not allowed access to the club bar. She could bring a discrimination claim in the county or (if the golf course is in Scotland) sheriff court.

  • A gay man applies for residential housing in a local authority area, but is told that he can choose from only three housing blocks because all homosexual people are housed together. He could bring a discrimination claim in the county or sheriff court.

Clause 111: Immigration cases

Effect

380.     This clause sets out which claims under the Bill are outside the jurisdiction of the county or sheriff courts because they are being dealt with in immigration proceedings. These are claims in relation to decisions on whether a person may enter or remain in the UK and claims where the question of whether there has been a breach of Part 3 of the Bill (dealing with services and public functions) has either been raised in immigration proceedings and rejected, or could be raised on appeal.

Background

381.     This provision is designed to replicate the effect of provisions in current legislation.

Clause 112: Education cases

Effect

382.     This clause sets out which education-related claims under the Bill are outside the jurisdiction of the county and sheriff courts. These are claims about discrimination because of disability in schools which should be brought instead in specialist tribunals (there is a separate tribunal for England, for Wales and for Scotland).

Background

383.     The position for England and Wales remains unchanged. As noted in relation to clause 110 the Bill for the first time enables disability discrimination in schools cases in Scotland to be heard in the Additional Support Needs Tribunals (Scotland) rather than the sheriff courts, where they are heard at present.

Clause 113: National security

Effect

384.     A county or sheriff court may need to take various steps during proceedings in order to safeguard national security. This clause enables the Civil Procedure Rules Committee (for England and Wales) and the Sheriff Court Rules Council (for Scotland) to make rules of court to enable the court to exclude a claimant, representative or assessor from part or all of the proceedings; permit a claimant or representative who has been excluded to make a statement before the proceedings begin; and ensure that part or all of the reasons for a decision on the merits of the case are kept secret. Where the claimant or his or her representative is excluded from proceedings, a special advocate can be appointed to represent the claimant’s interests.

Background

385.     This provision is designed to replicate and extend powers in current legislation. The existing powers apply in relation to some discrimination proceedings but not to those involving sexual orientation and age. This provision extends the power so that it applies across all the protected characteristics.

Clause 114: Time limits

Effect

386.     A person must bring a claim under the Bill in the county and sheriff courts within six months of the alleged unlawful act taking place. If a person wants to make a claim after that period it is at the courts’ discretion whether they grant permission to allow this. The test applied by the courts is what is “just and equitable” in the circumstances. This test is used to decide whether to extend time limits in other types of claims such as negligence personal injury claims and is used in the current legislation.

387.     The exception to this rule is for claims which have been referred to a student complaints scheme within six months or to the Equality and Human Rights Commission for conciliation. In these instances the time limit for bringing a claim is increased to nine months. The six month period will only begin, in a claim involving a decision of an immigration body, when that body has ruled that there is a breach of Part 3 and that ruling can no longer be appealed.

388.     Where the conduct in respect of which a claim under the Bill might arise continues over a period of time, the time limit starts to run at the end of that period. Where it consists of a failure to do something, the time limit starts to run when the person decides not to do the thing in question. In the absence of evidence to the contrary, this is either when the person does something which conflicts with doing the act in question; or at the end of the time when it would have been reasonable for them to do the thing.

Background

389.     This clause is designed to replicate the effect of provisions in the current legislation, except that the provision allowing a longer time limit in respect of complaints referred to the student complaints scheme and for conciliation by the Equality and Human Rights Commission is new.

Clause 115: Remedies

Effect

390.     This clause gives powers to county and sheriff courts hearing claims under the Bill to grant any remedy that the High Court or Court of Session in Scotland can grant in proceedings in tort or in a claim for judicial review. The main remedies available are damages (including compensation for injuries to feelings), an injunction and a declaration. In cases based on indirect discrimination, if the respondent proves that he or she did not intend to treat the claimant unfavourably then the award of damages can not be considered until a court has looked at the other remedies available to it.

391.     A court cannot grant some remedies, such as an injunction, if it would prejudice a criminal investigation or proceedings.

Background

392.     This provision is designed to replicate the effect of provisions in the current legislation.

Chapter 3: Employment tribunals

Clause 116: Jurisdiction

Effect

393.     This clause sets out what types of claims under the Bill the employment tribunals have jurisdiction to hear. These are cases involving discrimination in a work context (which includes contract workers, partners, office holders and barristers and advocates). Their jurisdiction also includes cases about the terms of collective agreements (which can cover any of the terms of employment) and rules of undertakings which are unenforceable under clause 141 because they provide for treatment which is prohibited by the Bill.

394.     It also gives jurisdiction to employment tribunals to hear complaints relating to breaches of a non-discrimination rule. Jurisdiction for hearing a complaint regarding a breach of an equality clause or an equality rule is set out in clause 123. An employment tribunal can also make a ruling on an application made by a responsible person in relation to an occupational pension scheme (as defined in clause 58(4)) for a declaration about their rights and those of a worker or member or prospective member of the scheme.

Background

395.     This clause is designed to replicate the effect of provisions in the current legislation.

Examples

  • A worker is racially abused by a co-worker. She could bring a discrimination claim in the employment tribunal.

  • A gay man has applied to become a partner in a firm of accountants but because he is homosexual has not been invited for an interview despite being equally or better qualified than other candidates who were invited for an interview. He could bring a discrimination claim in the employment tribunal.

Clause 117: Jurisdiction in armed forces cases

Effect

396.     This clause establishes that, before bringing a claim under the work provisions of the Bill to an employment tribunal, a member of the armed forces must raise his or her complaint through the armed services internal complaints procedure and not withdraw that complaint. If the complainant fails properly to progress his or her internal complaint then it may, in certain circumstances, be treated as if it had been withdrawn. The internal service complaint procedures do not have to be concluded before the complainant brings a claim to an employment tribunal.

Background

397.     This clause is designed to replicate the effect of provisions in the current legislation.

Example

  • A black soldier who thinks he has been discriminated against by being passed over for promotion would have to make an internal service complaint before bringing his claim to an employment tribunal.

Clause 118: References by court to tribunal, etc.

Effect

398.     The Bill does not prevent the civil courts from considering a claim that a pension scheme operates in a discriminatory manner. This clause enables a court to strike out such a claim if it would be more convenient for an employment tribunal to deal with it, or to refer an issue relating to such a claim to an employment tribunal.

Background

399.     Employment tribunals have the specialist knowledge and procedures to handle claims relating to discrimination in the work context and this clause gives a court power to refer such issues to a tribunal. This clause reflects similar provisions in current legislation.

Example

  • An employee who is member of a pension scheme sues his employer in court alleging the employer operates the scheme in a discriminatory manner. The court decides to refer the issue to an employment tribunal and postpones the case until the tribunal’s decision.

Clause 119: Time limits

Effect

400.     This clause deals with time limits for cases in the employment tribunals. A person must bring a claim within three months of the alleged conduct taking place. The exception to that rule is a case involving an armed forces complaint, which must be brought within six months. If a person wants to make a claim after that period it is at the tribunals’ discretion whether they grant permission to allow them to do so. The test applied by the tribunals is what is “just and equitable” in the circumstances. This test is used to decide whether to extend time limits in other types of claims such as negligence personal injury claims and is used under the current legislation.

401.     Where the conduct in respect of which a claim under the Bill might arise continues over a period of time, the time limit starts to run at the end of that period. Where it consists of a failure to do something, the time limit starts to run when the person decides not to do the thing in question. In the absence of evidence to the contrary, this is either when the person does something which conflicts with doing the act in question; or at the end of the time when it would have been reasonable for them to do the thing. This clause does not apply to a breach of an equality clause or an equality rule, which is covered by clause 125 below.

Background

402.     This clause is designed to replicate the effect of provisions in current legislation.

Clause 120: Remedies: general

Effect

403.     This clause sets out the remedies available to employment tribunals hearing cases under the Bill. It does not however apply to a breach of an equality clause or an equality rule, which is dealt with in clauses 128, 129 and 130.

404.     An employment tribunal can make a declaration regarding the rights of the complainant and/or the respondent; order compensation to be paid, including damages for injury to feelings; and make an appropriate recommendation. The measure of compensation is that which applies in tort claims, for example claims of negligence, which is to put the claimant in the same position, as far as possible, as they would have been if the unlawful act had not taken place.

405.     Where a tribunal makes a recommendation it does not have to be aimed only at reducing the negative impact on the individual claimant(s) of the respondent’s actions which gave rise to the successful claim, but can be aimed at reducing that impact on the wider workforce. The recommendation must state that the respondent should take specific action within a specified period of time. A tribunal has the power in any case where a recommendation made for the benefit of the individual claimant only is not complied with, to award compensation or increase any award already made.

406.     In a case of indirect discrimination where the respondent proves that there was no intention to treat the claimant unfavourably, a tribunal cannot award damages to a claimant unless it has first considered making either a declaration or recommendation.

Background

407.     This clause is designed generally to replicate the effect of provisions in current legislation. However, under current legislation, employment tribunals can make a declaration, order compensation to be paid and make recommendations. However, currently the recommendations that they can make can only be for the benefit of the individual claimant(s). The Bill will extend the recommendations power so that employment tribunals can make recommendations which benefit persons other than the claimant.

Example

408.     A tribunal could recommend that the respondent:

  • introduces an equal opportunities policy;

  • ensures its harassment policy is more effectively implemented;

  • sets up a review panel to deal with equal opportunities and harassment/grievance procedures;

  •      re-trains staff; or

  • makes public the selection criteria used for transfer or promotion of staff.

Clause 121: Remedies: national security

Effect

409.     This clause sets out the restrictions on the types of remedies available to an employment tribunal in cases which have been designated as “national security proceedings”. National security proceedings are those where an order has been made under various provisions of the Employment Tribunals Act 1996 or regulations made under the Act.

410.     In national security proceedings a recommendation must not be made for the benefit of the respondent’s wider workforce, if the recommendation would affect anything done by the Security Service, the Secret Intelligence Service, Government Communications Headquarters or the part of the armed forces which assist the Government Communication Headquarters. In such cases the tribunal is limited to making recommendations for the benefit of the individual claimant or claimants.

Background

411.     Because the Bill will extend the recommendations power to benefit persons other than the claimant, this provision is necessary to ensure that such recommendations do not affect national security.

Clause 122: Remedies: occupational pension schemes

Effect

412.     This clause sets out the additional remedies available to employment tribunals in cases involving occupational pension schemes. These are cases in which the respondent is an employer, or the trustee or manager of the pension scheme; and the complaint relates to the terms on which membership is offered to a pension scheme or how members of an existing scheme are treated. In these cases the tribunal can in addition to the remedies of declaration, compensation and recommendation, also make a declaration about the terms on which a person should be admitted as a member to that scheme or a declaration about the rights of an existing member of that scheme to not be discriminated against.

413.     However, a tribunal can award compensation only for injured feelings or for failure to comply with a recommendation; it cannot compensate the claimant for loss caused by the unlawful discrimination.

Background

414.          This provision is designed to replicate the effect of provisions in current legislation.

Chapter 4: Equality of terms

Clause 123: Jurisdiction

Effect

415.     This clause sets out the types of cases relating to equality of terms which employment tribunals have jurisdiction to hear. Tribunals may hear and decide claims (including those referred to them by courts) involving equality in the rules of occupational pension schemes and claims relating to an equality clause, including claims relating to pregnancy and maternity equality.

416.     A responsible person (as defined in clause 77, such as an employer, or a pension scheme trustee or manager) can also ask a tribunal for a declaration of each party’s rights in relation to a dispute or claim about an equality clause or rule.

417.     Members of the armed forces must bring a complaint under service complaints procedures before they can bring a claim to a tribunal.

418.     This clause does not alter any jurisdiction the courts or the sheriff have in relation to an equality clause or rule.

Background

419.     This clause is designed to replicate the effect of provisions in current legislation.

Example

  • An employment tribunal can hear claims brought by an employee, office holder or member of the armed forces in relation to a breach of an equality clause and in relation to breach of an equality rule in relation to a pension scheme.

Clause 124: References by court to tribunal, etc.

Effect

420.     The Bill does not prevent the civil courts from considering a contractual claim relating to an equality clause or rule or a non-discrimination rule. However, this clause gives a court the power to strike out such a claim if it would be more convenient for a tribunal to deal with it, or to refer an issue relating to such a claim to an employment tribunal.

Background

421.     Employment tribunals have the specialist knowledge and procedures to handle claims relating to equality of terms and this clause gives a court power to refer such issues to a tribunal. This clause replaces similar provisions in current legislation.

Example

  • An employer sues an employee in a civil court for breach of her employment contract. In response, the employee counterclaims for breach of an equality clause. The court decides to refer the counterclaim to an employment tribunal and postpones the case until the tribunal’s decision.

Clause 125: Time limits

Effect

422.     A person, who wishes to bring a claim for breach of an equality clause or rule, or to apply for a declaration about the effect of such a clause or rule, must normally do so within six months of the end of the employment contract. In certain circumstances, this clause gives a claimant more time to make a claim. This applies where the employer conceals certain information from the claimant or where the claimant is under an incapacity (as defined in clause 137). Members of the armed forces have an additional three months in which to bring a claim because they must first make a complaint under the service complaint procedures.

Background

423.     This provision replaces similar provisions in current legislation. Time limits provide certainty by requiring claims to be brought within specified periods and also take into account factors which may affect a claimant’s ability to assert his or her claim.

Example

  • A former member of the armed forces wishes to bring a claim about her terms of service. She first makes a service complaint and then brings a claim for breach of an equality clause in an employment tribunal. The claim for breach of an equality clause must be brought in an employment tribunal within nine months after her period of service ended.

Clause 126: Section 125: supplementary

Effect

424.     Under clause 125, the time limit for bringing a claim for breach of an equality clause is six months (nine months for members of the armed forces) from the date on which employment ended in a standard case. Different time limits apply to non-standard cases. This clause defines what is not a standard case.

425.     In a stable work case, a series of fixed or short term contracts and breaks between contracts is treated as a continuing single contract. In a standard case, the time limit would start at the end of the contract of employment. In a stable work case, the time limit only begins to run when the stable working relationship ends.

426.     421.     In a concealment case, the employer deliberately conceals relevant information from the employee. The time limit starts to run when the employee discovers, or could reasonably have discovered, the information.

427.     In an incapacity case, the appropriate time limit will start to run when the incapacity ends. Clause 137 sets out when a person has an incapacity.

428.     The clause makes similar provisions for claims by members of the armed forces and in relation to occupational pension schemes.

Background

429.     This provision replaces similar provisions in the current legislation.

Examples

  • A woman’s employment ends due to mental health problems which result in her temporary loss of capacity to make decisions for herself. She could make a claim for breach of an equality clause to an employment tribunal but is not well enough to do so. The six month time limit will start when she recovers sufficiently to make a claim.

  • A woman suspects that her male colleagues who do the same work are better paid. Her employer reassures her that she and her colleagues get the same salary but he deliberately does not tell her that the men also receive performance bonuses under their contracts. Her male colleagues refuse to discuss their pay with her. The woman only discovers the discrepancy between her pay and the men’s when one of the men tells her 18 months after she ceases employment. Within six months, she makes an equal pay claim to a tribunal based on the value of the bonus payments she would have received if her contract had provided for them. Although the woman’s claim is made more than six months after her employment ends, she shows that her employer deliberately misled her into believing her salary was the same as the men’s. She had no way of discovering the truth earlier. Her claim can proceed as a concealment case.

Clause 127: Assessment of whether work is of equal value

 
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Prepared: 19 November 2009