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Effect

430.     Where an employment tribunal has to decide if the work of a claimant and comparator are of equal value, this clause gives it the power to require an independent expert, designated by the Advisory, Conciliation and Arbitration Service to prepare a report on the matter.

431.     Unless the tribunal withdraws its request for a report (in which case it can ask the expert to give it any documents or other information the expert has to help it make a decision) it must wait for the expert’s report before deciding whether the work is of equal value.

432.     If there has been a job evaluation study in relation to the work involved and the study finds that the claimant’s work is not of equal value to the work of the comparator, the tribunal is required to come to the same decision unless it has a good reason to suspect that the study is discriminatory or unreliable.

Background

433.     This provision replaces similar provisions in current legislation.

Example

  • A woman claims that her job is of equal value to that of a male comparator. The employer produces a job evaluation study to the tribunal in which the woman’s job is rated below her comparator’s job. The employer asks the tribunal to dismiss the woman’s claim but the woman is able to show that the study is unreliable because it is out of date and does not take account of changes in the jobs resulting from new technology. The tribunal can disregard the study’s conclusion and can proceed to decide if the work of the claimant and comparator are of equal value.

Clause 128: Remedies in non-pensions cases

Effect

434.     If a claim for breach of an equality clause (other than in relation to a pension scheme) succeeds, the court or employment tribunal can make a declaration clarifying what the rights of the parties to the claim are.

435.     The court or tribunal can also order the employer to pay the claimant arrears of pay or damages. The period used for calculating arrears depends on the type of case. There are different periods for claims brought in England and Wales and in Scotland. The basic period in relation to England and Wales is six years from the date a claim is made. In relation to Scotland, the period is five years. Special provision is made for claims involving concealment and/or incapacity (as set out in clause 131).

Background

436.     This provision replaces similar provisions in current legislation.

Example

  • A woman successfully establishes that her work is the same as her male comparator’s and that in addition to a discrepancy between her pay and that of her male colleague, she has been denied access to the benefit of a company car. The claimant is entitled to claim the difference in pay going back up to six years from the date of the claim. She is also entitled to monetary compensation for not having had the use of a company car.

Clause 129: Remedies in pensions cases

Effect

437.     This clause allows an employment tribunal to declare that in cases where an equality rule or equality clause has been breached in relation to:

  • scheme membership, the complainant is entitled to be admitted to the scheme from a date specified by the tribunal, although the date cannot be earlier than 8 April 1976;

  • scheme rights, the complainant is entitled to have any rights which would have accrued under the scheme secured from a date specified by the tribunal, although the date cannot be earlier than 17 May 1990.

438.     However, the clause prevents a tribunal ordering an award of compensation to the complainant.

Background

439.     This clause replicates requirements in the Equal Pay Act 1970, as modified by the Occupational Pension Schemes (Equal Treatment) Regulations 1995.

440.     The restrictions on dates derive from judgments of the European Court:

  • for scheme membership: 8 April 1976, the date of the Court’s judgment in Defrenne v Sabena. The Court, in holding that the principle of equal pay was directly effective, held that Article 141 (formerly Article 119) of the Treaty of Rome should not be applied to periods of service before the judgment.

  • for scheme rights: 17 May 1990, the date of the Court’s judgment in Barber v Guardian Royal Exchange Insurance Group, which established that occupational pensions were equal pay for the purposes of Article 119 of the Treaty of Rome.

Clause 130: Remedies in claims for arrears brought by pensioner members

Effect

441.     This clause allows a court or an employment tribunal to require compensation to be paid to a pensioner member for a breach of an equality clause or rule in relation to an occupational pension scheme and sets out the period for which arrears may be awarded for different types of cases. In a standard case in England and Wales, the period is six years before the date when a claim is made. Different periods apply to cases brought in England and Wales and to cases brought in Scotland. Special provision is made for claims involving concealment and/or incapacity (as set out in clause 131).

Background

442.     This clause replicates requirements in the Equal Pay Act 1970, as modified by the Occupational Pension Schemes (Equal Treatment) Regulations 1995.

Clause 131: Supplementary

Effect

443.     The amount an employment tribunal can award a successful claimant is affected by how far back in time it can go in making its calculation. The type of case before the tribunal determines this period. This clause defines the different types of cases.

Background

444.          This clause replicates the effect of similar provisions in current legislation.

Chapter 5: Miscellaneous

Clause 132: Burden of proof

Effect

445.     This clause provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Bill, the burden of proving their case starts with the claimant. Once the claimant has established sufficient facts to point to a breach having occurred, in the absence of any other explanation, the burden shifts onto the respondent to show that he or she did not breach the provisions of the Bill. The exception to this rule is if the proceedings relate to a criminal offence under this Bill.

Background

446.     Under current legislation, in most cases the burden of proof is reversed once the claimant has established a case to an initial level. However, the burden of proof is currently not reversed in race discrimination claims brought on grounds of colour and nationality; claims of victimisation which relate to race discrimination; non-work disability discrimination claims; and sex discrimination claims which relate to the exercise of public functions. In these areas the burden of proof will now be reversed once the claimant establishes his or her case to an initial level.

Example

  • A man of Chinese ethnic origin applies for a promotion at work but is not given an interview for the job. He finds that a number of white colleagues were given interviews despite having less experience and fewer qualifications. He brings a case for race discrimination before the employment tribunal and provides sufficient evidence to show that he had been treated less favourably because of his ethnic origin. It would then be up to his employer to prove that she had not discriminated against him in the promotion process.

Clause 133: Previous findings

Effect

447.     This clause provides, that if a person has brought a case under any of the current legislation which this Bill will replace which is listed in this clause, and a finding by a tribunal or court has been finalised, the issues decided in that case cannot be re-opened and litigated again under the provisions in this Bill.

Background

448.     This provision is necessary because the Bill is re-enacting many of the provisions in the legislation listed at subsection (2). This re-enactment should not provide a way to re-open issues before the courts which have been decided in proceedings under the existing legislation.

Clause 134: Obtaining information etc.

Effect

449.     This clause provides a mechanism for a person who thinks that he or she may have been unlawfully discriminated against, harassed or victimised to obtain information from the person they think has acted unlawfully against them (that is to say, the potential respondent or defendant). The person may ask questions either on a form prescribed by order by a Minister of the Crown or in some other form.

450.     The questions and the answers are admissible as evidence in a case brought under the Bill and the court or tribunal may draw inferences from a failure by the respondent to answer the questions posed within eight weeks or from evasive or equivocal answers.

451.     However the court or tribunal cannot draw such adverse inferences in certain specified circumstances. These are if the respondent says that to answer differently would have prejudiced criminal proceedings or revealed the reason for criminal proceedings being withdrawn or not being brought and this is reasonable. The clause contains a power for a Minister of the Crown to specify by order additional circumstances where the adverse inferences would not apply.

Background

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

Clause 135: Interest

Effect

453.     This clause enables a Minister of the Crown to make regulations enabling an employment tribunal to add interest payments to any award of compensation made to a claimant as a result of a discrimination case brought under this Bill. The regulations can set out how the tribunal should calculate how much interest should be paid.

454.     The regulations may provide that interest is to be calculated in a different way in discrimination proceedings from how it is in other cases before the employment tribunals, so they can modify the effect of an order made under the Employment Tribunals Act 1996 about interest calculations which applies to employment cases more generally.

Background

455.     This replicates powers contained in current legislation.

Example

  • A claimant is awarded compensation for being discriminated against by his employer. Regulations made under this clause may provide that if the award is not settled by the respondent within 14 days of the employment tribunal’s decision then interest is to accrue on this award. The current regulations specify that the rate of interest applied to unpaid awards is fixed at 8%. A different rate can be applied if this is provided in regulations.

Clause 136: Conduct giving rise to separate proceedings

Effect

456.     This clause enables an employment tribunal to transfer a case to a county or sheriff court, or a court to transfer a case to an employment tribunal, if it is based on the same conduct as one or more separate cases and one of the claims relates to instructing, causing or inducing a person to discriminate against, harass or victimise another person. It also provides that an employment tribunal or court cannot make a decision about such a case which is inconsistent with an earlier decision about the same conduct.

Background

457.     This is a new provision which will allow for the transfer of certain types of connected cases between the tribunals and courts.

Example

  • An employer instructs an employee to discriminate against a customer. The customer brings a case against the employer or an employee in a county court. The employee brings a case against the employer in an employment tribunal. These claims both arise out of the same conduct and so the court and the tribunal can transfer one set of proceedings so that they can be dealt with together as this is a better way of managing the cases.

Clause 137: Interpretation, etc.

Effect

458.     This clause explains the meaning of various terms used in this Part.

PART 10: CONTRACTS, ETC.

Clause 138: Unenforceable terms

Effect

459.     This clause makes terms of contracts which discriminate against a person or would otherwise lead to conduct prohibited by the Bill unenforceable in that respect. But a person who would have been disadvantaged by any such term will still be able to rely on it so as to obtain any benefit to which it entitles him.

460.     For disability alone, this clause also applies to terms of non-contractual agreements relating to the provision of employment services (within clause 54(2)(a) to (e)) or group insurance arrangements for employees. These terms are referred to in the clause as “relevant non-contractual terms”.

461.     This clause does not apply to a term of contract modified by an equality clause under Part 5, Chapter 3, because once the term is modified it is no longer discriminatory. Nor, as a result of clause 144, does it deal with contractual terms which may breach the public sector equality duty (Part 11) or the public sector duty regarding socio-economic inequalities (Part 1), to which different enforcement mechanisms apply.

Background

462.     The clause replaces provisions in current legislation which have a similar effect, and maintains the specific protection for certain non-contractual provisions currently given in the Disability Discrimination Act 1995.

Example

  • A term in a franchise agreement which included a requirement that the franchisee should only employ Asian people could not be enforced by the franchisor unless he could objectively justify it (unless an exception applies). But the franchisee could still obtain any benefit he is due under the term, for example he could continue operating the franchise. However, if the franchisee complied with the discriminatory term, a person discriminated against under it could make a claim against the franchisee for unlawful discrimination under other provisions in the Bill.

Clause 139: Removal or modification of unenforceable terms

Effect

463.     This clause allows a county court (or a sheriff court in Scotland) to modify or remove a contractual (or relevant non-contractual) term which is made unenforceable under clause 138, when asked to do so by a person who has an interest in the contract (which includes anyone affected by it). The court may also decide that the term is to be treated as having been removed or modified during the period prior to the making of the order.

464.     The court must first ensure that anyone who would be affected has been told of the proceedings and given an opportunity to make their views known. Rules of court determine what the court must do to meet this obligation.

Background

465.     This clause replaces similar provisions in current legislation.

Example

  • A person renting an office in a serviced office block could ask for a term in the rental contract to be amended if the term discriminated indirectly, for example by including an unjustified requirement that people entering the premises remove any facial covering (thus discriminating against Muslim women). The term could be adjusted by the court or sheriff to allow special arrangements to be made to satisfy both genuine security needs of other users and the religious needs of Muslim women visiting the claimant.

Clause 140: Contracting out

Effect

466.     Under this clause, contractual and relevant non-contractual terms which try to exclude or limit the operation of any provision in the Bill (which includes those dealing with equality of terms) or a provision of secondary legislation made under the Bill (for example regulations made under clause 78 (Ships and hovercraft)) are unenforceable by the person in whose favour the term operates. There are exceptions to this to allow negotiated settlement of claims in the following circumstances:

  • a contract settling a claim in an employment tribunal (including an agreement settling a claim for a breach of an equality clause) that has been negotiated with the help of a conciliation officer or which meets the standards set out in clause 143 (meaning of qualifying compromise contract). This includes an arbitration agreement made in accordance with a scheme under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992 (where the parties agree to submit a dispute to arbitration).

  • a contract settling a county or sheriff court claim;

Background

467.     This clause replaces similar provisions in current legislation.

Examples

  • A woman who thinks she may have a claim for unlawful discrimination upon being made redundant may give up any right to pursue the claim under the Act in return for payment. She will not then be able to ask a court to modify or remove that term so as to pursue the claim at a later date.

  • However, if the agreement was not reached with the assistance of a conciliation officer or was not a qualifying compromise agreement, it would be unenforceable (and thus would not prevent the claimant pursuing the claim before an employment tribunal).

Clause 141: Void and unenforceable terms

Effect

468.     This clause deals with collective agreements (which are defined in the Trade Union and Labour Relations (Consolidation) Act 1992).

469.     It also deals with rules of undertakings of employers, trade organisations and qualifications bodies (which are defined in Part 5).

470.     Any term of a collective agreement is rendered void to the extent that it discriminates against a person or would otherwise lead to conduct prohibited by the Bill. Terms of collective agreements are made void rather than unenforceable because making them unenforceable would be of no help to those affected, since they are unenforceable in any case unless incorporated into a contract. The term is therefore made of no effect at all, leaving the interested parties to renegotiate.

471.     A rule of an undertaking which discriminates against a person or would otherwise lead to conduct prohibited by the Bill is made unenforceable. A rule of an undertaking is defined in clause 144 as a rule made by a qualifications body or trade organisation in relation to membership or conferral of a qualification, or a rule made by an employer for application to employees and prospective employees.

Background

472.     This clause replaces similar provisions in current legislation.

Example

  • A collective agreement which required jobs in a particular part of a factory to be given only to men would be void, so a woman who applied could not be refused on those grounds.

  • An indirectly discriminatory rule of a qualifications body (providing for example a professional qualification for plumbers) which required that applicants must have two years’ previous experience with a British firm would be unenforceable against a person who had the equivalent experience with a foreign firm. It would still be enforceable against a person who did not have the required experience at all (provided it was justified).

Clause 142: Declaration in respect of void term, etc.

Effect

473.     This clause enables an employment tribunal to declare a term of a collective agreement void, or a rule of an undertaking unenforceable, as set out in clause 141, when a person thinks that it might in the future have the effect of discriminating against him or her. Because collective agreements apply to many people in many (possibly varying) situations, it is not appropriate for a tribunal to modify them and so they are made void, rather than subject to modification or amendment, and the parties are left to renegotiate, bearing all those potentially affected in mind.

474.     The clause sets out who can make a complaint in each instance. Terms of discriminatory collective agreements can be challenged by employees or prospective employees. Rules of undertakings of employers can be challenged by employees or prospective employees; those of trade organisations by members or prospective members; and those of qualifications bodies by persons seeking or holding relevant qualifications (clause 52).

Background

This clause replaces similar provisions in current legislation.

Examples

  • A person who is studying for an engineering qualification who is told he will only be eligible for it if he passes a test of his ability to write English can ask a tribunal to declare that the rule requiring the test is indirectly discriminatory and therefore, if unjustified, unenforceable.

Clause 143: Meaning of “qualifying compromise contract”

Effect

475.     This clause sets the conditions under which a compromise contract settling a case can be lawful, even though it seeks to limit the application of the Bill under clause 140.

476.     It must be a written contract which meets each of the following conditions (and says that it does). The conditions are that the complainant in the case has received independent advice from a named person who is insured or indemnified against the risk of a claim against him arising from that advice.

477.     The clause describes who can be an independent adviser and includes a power to add new descriptions of people who may be independent advisers in the future. It makes clear that a conflict of interest prevents a person being an independent adviser and defines what a conflict of interest is.

Background

478.     The clause replaces provisions in current legislation which have the same purpose. The power to add to the kinds of person who may be independent advisers could be used to add, for example, Fellows of the Institute of Legal Executives employed by a solicitors’ practice.

Examples

  • An employee who settled a claim at employment tribunal on the advice of a lawyer who works for the employer he was seeking to sue would still be able to pursue the claim (assuming a conciliation officer was not involved in the settlement). The settlement agreement would be unenforceable because the lawyer had a conflict of interest and therefore the agreement would not be a qualifying compromise contract.

  • Relying on advice from an advice agency which is not insured against being sued as a result of giving bad advice would be risky for both claimant and adviser. Because of this, a settlement contract agreed on the advice of such an agency would not be a qualifying compromise contract so any term in it limiting the person’s rights under the Bill would be unenforceable.

Clause 144: Interpretation

Effect

479.     This clause explains what is meant by various terms used in this Part of the Bill, or applies definitions provided elsewhere. These are referred to in the notes on earlier clauses.

PART 11: ADVANCEMENT OF EQUALITY

Chapter 1: Public sector equality duty

Clause 145: Public sector equality duty

Effect

480.     This clause imposes a duty, known as the public sector equality duty, on the public bodies listed in Schedule 19 to have due regard to three specified matters when exercising their functions. The three matters are:

    a)     eliminating conduct that is prohibited by the Bill, including breaches of non-discrimination rules in occupational pension schemes and equality clauses or rules which are read, respectively into a person’s terms of work and into occupational pension schemes;

    b)     advancing equality of opportunity between people who share a protected characteristic and people who do not share it; and

    c)     fostering good relations between people who share a protected characteristic and people who do not share it.

481.     The second and third matters apply to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. They do not apply to the protected characteristic of marriage and civil partnership.

482.     Subsections (3) and (4) expand on what it means to have due regard to the need to advance equality of opportunity and foster good relations.

483.     As well as the public bodies listed in Schedule 19, the clause also imposes the public sector equality duty on others that exercise public functions, but only in respect of their public functions. Clause 146 explains what is meant by “public function”.

484.     The clause makes clear that complying with the duty might mean treating some people more favourably than others, where doing so is allowed by the Bill. This includes treating disabled people more favourably than non-disabled people and making reasonable adjustments for them, making use of exceptions which permit different treatment, and using the positive action provisions in Chapter 2 of this Part where they are available.

485.     Schedule 18 sets out persons and functions to which the equality duty does not apply.

 
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Prepared: 19 November 2009