House of Commons Public Bill Committee Proceedings

House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Report Stage Proceedings: 2 December 2009
8

Equality Bill, continued

the judge and tribunal that have the responsibility for determining the rights or

common issue in relation to rights, of the member class.’.

Hypothetical comparisons in equal pay cases

Lynne Featherstone

Dr Evan Harris

Not called  NC5

To move the following Clause:—

‘(1)
To the extent set out in subsections (2) and (3), sections 63 to 66 apply where a

person (A) does not have a colleague (B) who does work that falls within section

61, because there is no such person of the opposite sex to A.

(2)
The provisions of section 63 will apply to the extent that a term of A’s is less

favourable than a corresponding term of B would be, or that A does not have a

term which B would have.

(3)
The provisions of section 64 will apply to the extent that a term of A’s is less

favourable than a corresponding term of B would be, or if a discretion in relation

to A is capable of being exercised in a way which is less favourable than it would

be in relation to B.’.

Defence of material factor (No. 2)

Lynne Featherstone

Dr Evan Harris

Not called  NC6

To move the following Clause:—

‘(1)
The sex equality clause in A’s terms has no effect in relation to a difference

between A’s terms and B’s terms if the responsible person shows that the

difference is because of a material factor—

(a)
which does not constitute discrimination because of sex within the

meaning of section 13, and

(b)
if the factor puts or would put A and persons of the same sex as A at a

particular disadvantage when compared with persons of the opposite sex,

reliance upon that factor is shown by the responsible person to be

objectively justified by a legitimate aim and appropriate and necessary to

the achievement of that aim.

(2)
A sex equality rule has no effect in relation to a difference between A and B in

the effect of a relevant matter if the trustees or managers of the scheme in question

show that the difference is because of a material factor which—

(a)
does not constitute discrimination because of sex within the meaning of

section 13, and

(b)
if the factor puts or would put A and persons of the same sex as A at a

particular disadvantage when compared with persons of the opposite sex,

reliance upon that factor is shown by the responsible person to be

Report Stage Proceedings: 2 December 2009
9

Equality Bill, continued

objectively justified by a legitimate aim and appropriate and necessary to

the achievement of that aim.

(3)
“Relevant matter” has the meaning given in section 64.

(4)
For the purposes of this section, a factor is not material unless it is a material

difference between A’s case and B’s.’.

Harassment (sexual orientation)—education and services and public functions

Dr Evan Harris

Lynne Featherstone

Not called  NC7

To move the following Clause:—

‘(1)
A person (A) harasses another (B) if A engages in unwanted conduct related to a

relevant protected characteristic which has the purpose or effect mentioned in

subsection (2).

(2)
The purpose or effect is—

(a)
violating B’s dignity, and

(b)
creating an intimidating, hostile, degrading, humiliating or offensive

environment for B.

(3)
In deciding whether conduct has that effect, each of the following must be taken

into account—

(a)
the perception of B;

(b)
the other circumstances of the case;

(c)
whether it is reasonable for the conduct to have that effect.

(4)
The relevant protected characteristic is sexual orientation.

(5)
This section applies to—

(a)
Part 3 (services and public functions) where the service or public function

is carried out by a public authority, or on behalf of a public authority,

under the terms of a contract with a public authority, or is otherwise a

function of a public nature, and

(b)
Part 6 (education).’.

Harassment (gender reassignment)—education

Dr Evan Harris

Lynne Featherstone

Not called  NC8

To move the following Clause:—

‘(1)
A person (A) harasses another (B) if—

(a)
A engages in unwanted conduct related to a relevant protected

characteristic which has the purpose or effect mentioned in subsection

(2),

Report Stage Proceedings: 2 December 2009
10

Equality Bill, continued

(b)
A engages in any form of unwanted verbal, non-verbal or physical

conduct of a sexual nature that has that purpose or effect, or

(c)
because of B’s rejection of or submission to conduct (whether or not of

A), A treats B less favourably than A would treat B if B had not rejected

or submitted to the conduct.

(2)
The purpose or effect is—

(a)
violating B’s dignity, and

(b)
creating an intimidating, hostile, degrading, humiliating or offensive

environment for B.

(3)
In deciding whether conduct has that effect, each of the following must be taken

into account—

(a)
the perception of B;

(b)
the other circumstances of the case;

(c)
whether it is reasonable for the conduct to have that effect.

(4)
For the purposes of subsection (1)(c), the conduct is—

(a)
conduct mentioned in subsection (1)(a), or

(b)
conduct mentioned in subsection (1)(b).

(5)
The relevant protected characteristic is gender reassignment.

(6)
This section applies to Part 6 (education).’.

Harassment (religion or belief)—education and services and public functions

Dr Evan Harris

Lynne Featherstone

Not called  NC9

To move the following Clause:—

‘(1)
A person (A) harasses another (B) if A engages in unwanted conduct related to a

relevant protected characteristic which has the purpose or effect mentioned in

subsection (2).

(2)
The purpose or effect is—

(a)
violating B’s dignity, and

(b)
creating an intimidating, hostile, degrading or humiliating environment

for B.

(3)
In deciding whether conduct has that effect, each of the following must be taken

into account—

(a)
the perception of B;

(b)
the other circumstances of the case;

(c)
whether it is reasonable for the conduct to have that effect.

(4)
The relevant protected characteristic is religion or belief.

(5)
This section applies to—

(a)
Part 3 (services and public functions) where the service or public function

is carried out by a public authority, or on behalf of a public authority,

under the terms of a contract with a public authority, or is otherwise a

function of a public nature, and

Report Stage Proceedings: 2 December 2009
11

Equality Bill, continued

(b)
Part 6 (education).’.

Caste

Lynne Featherstone

Dr Evan Harris

Lynne Jones

John McDonnell

Not called  NC10

To move the following Clause:—

‘In relation to the protected characteristic of caste—

(a)
a reference to a person who has a particular protected characteristic is a

reference to a person of a particular caste;

(b)
a reference to persons who share a protected characteristic is a reference

to a person of the same caste.’.

Pre-interview discrimination protection

Lynne Featherstone

Dr Evan Harris

Not called  NC11

To move the following Clause:—

‘An employer (A) discriminates against a person (B) in the arrangements A

makes for deciding who to offer employment if A fails to take reasonable steps to

ensure that—

(a)
the selection for interview is carried out on an anonymous basis, and

(b)
the person selecting for interview does not know the gender, race, sexual

orientation, age or marital status of B or whether B has a disability.’.

Gender identity

Lynne Featherstone

Dr Evan Harris

Lynne Jones

Not selected  NC12

To move the following Clause:—

‘(1)
A person has the protected characteristic of gender identity if the person is or is

perceived to be—

(a)
a person intending to undergo, undergoing, or having undergone gender

reassignment, where gender reassignment means a process which is

Report Stage Proceedings: 2 December 2009
12

Equality Bill, continued

undertaken under medical supervision for the purpose of reassigning the

person’s sex by changing physiological or other characteristics of sex,

and includes any part of such a process;

(b)
a person living permanently in the gender role different from that

expected of a person of their recorded natal sex;

(c)
a person who has, by virtue of the Gender Recognition Act 2004 (c.7),

received recognition of their acquired gender for all legal purposes; or

(d)
a person who has a gender identity that is different from that expected of

a person of their recorded natal sex, provided that their behaviour which

is a manifestation of that gender identity is not unlawful or offensive.

(2)
For the purposes of subsection (1)(d) gender identity can also include where

gender identity is indeterminate.

(3)
A reference to a transgender person is a reference to a person who has the

protected characteristic of gender identity.

(4)
In relation to the protected characteristic of gender identity—

(a)
a reference to a person who has a particular protected characteristic is a

reference to a transgender person;

(b)
a reference to persons who share a protected characteristic is a reference

to transgender persons.’.

Limitation of public sector equality duty (religion or belief)

Dr Evan Harris

Lynne Featherstone

Not called  NC13

To move the following Clause:—

‘(1)
Nothing in section 145 shall require a public authority in exercising its functions

to restrict lawful free expression.

(2)
In relation to religion or belief, in having regard to the need to meet the needs of

persons who share a protected characteristic, a public authority shall have regard

to the principle of inclusiveness.

(3)
The principle of inclusiveness means that where a public authority could meet the

needs of persons who share a relevant protected characteristic (a “group”), by

either—

(a)
providing a single service that is capable of meeting the needs of all

individuals, or

(b)
providing separate services for different groups,


it shall prefer the former.

(4)
In fulfilling its duties under section 145(3)(b) in relation to religion or belief, a

public authority shall have regard only to those needs which are reasonable.’.

Report Stage Proceedings: 2 December 2009
13

Equality Bill, continued

Discrimination in provision of public services by employees

Dr Evan Harris

Lynne Featherstone

Not called  NC14

To move the following Clause:—

‘(1)
A person (a “service provider”) concerned with the provision of a public service

shall not make accommodations or adjustments to allow its employees to

discriminate in any way which would be unlawful if the service provider itself

were to discriminate in that way.

(2)
A service is a public service if it is carried out by a public authority, on behalf of

a public authority, subject to a contract with a public authority, or is otherwise a

function of a pubic nature.’.

Favourable treatment on grounds of disability

Lynne Featherstone

Dr Evan Harris

Not called  NC15

To move the following Clause:—

‘Nothing in this Act shall be taken to prohibit more favourable treatment of a

disabled person on the grounds of a disabled person’s disability.’.

Positive action: disability

Lynne Featherstone

Dr Evan Harris

Not called  NC16

To move the following Clause:—

‘For the purposes of sections 152 and 153, disability is not a protected

characteristic.’.

Discussions with third parties

Lynne Featherstone

Dr Evan Harris

Not called  NC17

To move the following Clause:—

Report Stage Proceedings: 2 December 2009
14

Equality Bill, continued

‘(1)
A term of a person’s work that prevents or restricts the person (P) from being

involved in discussions with third parties about the terms of P’s work is

unenforceable against P insofar as P is involved in a relevant pay discussion.

(2)
A relevant pay discussion is a discussion with a third party—

(a)
which is about pay, and

(b)
which relates to whether or to what extent there is, in relation to the work

in question, a connection between pay and having (or not having) a

particular protected characteristic.

(3)
Being involved in a discussion includes—

(a)
seeking the disclosure by a third party of information;

(b)
disclosing information to a third party;

(c)
receiving information disclosed by a third party;

(d)
seeking advice from a third party.

(4)
Being involved in a relevant pay discussion is to be treated as a protected act for

the purposes of the relevant victimisation provision.

(5)
The relevant victimisation provision is, in relation to a description of work

specified in the first column of the table, section 25 insofar as it applies for the

purposes of a provision mentioned in the second column.

Description of work
Provision by virtue of which

section 26 has effect

Employment
Section 37(3)

Appointment to a personal
Section 47(5) or (8)

office

Appointment to a public
Section 48(5) or (9).’.

office

Direct discrimination arising from sexual orientation

Dr Evan Harris

Lynne Featherstone

Not called  NC18

To move the following Clause:—

‘A person (A) discriminates against another (B) on grounds of sexual orientation

if, because of a manifestation or behaviour connected with B’s sexual orientation,

A treats B less favourably than A treats or would treat others.’.



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