(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
Provisions by virtue of which section 26 has effect
Appointment to a personal office
Section 47(5) or (8)
Appointment to a public office
Section 48(5) or (9).'.
New clause 21- Prohibited pre-employment inquiries
'(1) A person (A) subjects a disabled job applicant (B) to prohibited pre-employment enquiries where A makes inquiries of B as to whether B is a disabled person or as to the nature or severity of such disability.
(2) Inquiries of a disabled person as to the existence, nature or severity of their disability will not constitute prohibited pre-employment inquiries for the purposes of this Act where-
(a) the inquiry is for the purpose of determining whether an applicant requires reasonable adjustments for the interview process and is stated as being such an inquiry;
(b) the inquiry is made at the application stage for the purposes of monitoring disabled applicants, where such inquiry is made in writing, is kept separately from any application form, is anonymised, and is stated as being such an inquiry;
(c) for the purposes of positive action in recruitment, such as offering the guaranteed interview scheme, and is stated as being such an inquiry.
(3) Any invitation to request reasonable adjustments or disclose a disability under subsection (2)(a), (b) and (c) must specify the use that will be made of that information and must state that there is no requirement to provide that information.
(4) Information provided must only be used for the stated purpose.
(5) Inquiries of a disabled person as to the existence, nature or severity of their disability will not constitute prohibited pre-employment inquiries for the purposes of this Act where the inquiry is necessary for the purposes of determining whether an applicant can perform a specific employment-related function, either with or without adjustments and is stated as being such an inquiry.'.
New clause 22- Employees and applicants: prohibited pre-employment inquiries
'An employer (A) must not subject a disabled job applicant (B) to prohibited employment inquiries.'.
New clause 24- Time off for workplace equality representatives
'(1) An employer shall permit an employee of his who is-
2 Dec 2009 : Column 1116
(a) a member of an independent trade union recognised by the employer, and
(b) a workplace equality representative of the trade union,
to take reasonable time off during his working hours for any of the following purposes.
(2) The purposes are-
(a) carrying out any of the following activities-
(i) promoting equality workplace initiatives and practices;
(ii) carrying out equality audits and assessments;
(iii) being consulted on workplace equality policies, practices and management systems;
(b) consulting the employer about carrying out any such activities;
(c) preparing for any of the things mentioned in paragraphs (a) and (b).
(3) Subsection (1) only applies if-
(a) the trade union has given the employer notice in writing that the employee is a workplace equality representative of the trade union, and
(b) the training condition is met in relation to him.
(4) The training condition is met if-
(a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact,
(b) the trade union has in the last six months given the employer notice in writing that the employee will be undergoing such training, or
(c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact.
(5) Only one notice under subsection (4)(b) may be given in respect of any one employee.
(6) References in subsection (4) to sufficient training to carry out the activities mentioned in subsection (2) are to training that is sufficient for those purposes having regard to any relevant equality duty imposed by this Act or provision of a Code of Practice issued by ACAS or the Secretary of State.
(7) If an employer is required to permit an employee to take time off under subsection (1), he shall also permit the employee to take time off during his working hours for the following purposes-
(a) undergoing training which is relevant to his functions as a workplace equality representative, and
(b) where the trade union has in the last six months given the employer notice under subsection (4)(b) in relation to the employee, undergoing such training as is mentioned in subsection (4)(a).
(8) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant equality duty imposed by this Act or provision of a Code of Practice issued by ACAS or the Secretary of State.
(9) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.
(10) References in subsection (2) to equality audits and assessments are to equality audits and assessments that are sufficient for those purposes having regard to the relevant equality duty imposed by this Act or provision of a Code of Practice issued by ACAS or the Secretary of State.
(11) In subsection (2)(a), the reference to qualifying members of the trade union is to members of the trade union-
2 Dec 2009 : Column 1117
(a) who are employees of the employer of a description in respect of which the union is recognised by the employer, and
(b) in relation to whom it is the function of the workplace equality representative to act as such.
(12) For the purposes of this section, a person is a workplace equality representative of a trade union if he is appointed or elected as such in accordance with its rules.
(13) In this section "trade union" has the meaning given in section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992.'.
New clause 25- Application of the National Minimum Wage
'In the National Minimum Wage Act 1998 (c. 39) for section 40 (mariners) there is substituted-
For the purposes of this Act, an individual employed to work on board a ship which either-
(a) is registered in the United Kingdom under Part II of the Merchant Shipping Act 1995 (c. 21) (and that individual is ordinarily resident in the United Kingdom); or
(b) is trading solely between United Kingdom ports, anchorages, roadsteads or offshore installations,
shall be treated as an individual who under his contract ordinarily works in the United Kingdom unless that employment is wholly outside the United Kingdom; and related expressions shall be construed accordingly."'.
New clause 26- Equal pay audit following contravention by employer
'(1) In the event that a court or employment tribunal finds that an employer has contravened a term modified or included by an equality clause, the employer shall be required to undertake an audit, to be known as an equal pay audit, and to make the results of the audit available in the prescribed manner.
(2) In this section "prescribed" means prescribed in regulations made by the Secretary of State.'.
New clause 33- Mandatory pay audits (No. 2)
'(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-
(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) respectively; and
2 Dec 2009 : Column 1118
(iv) in relation to descriptions of activities within paragraph (c)(i) and paragraph (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 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 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 no less than 21 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 2 Dec 2009 : Column 1119
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.'.
New clause 36- Exemption for small businesses
'This Act does not apply to any employer who has fewer than 250 employees.'.
New clause 38- Prohibition of affirmative or positive action by public authorities
'(1) It is unlawful for a public authority to promote or engage in any form of affirmative or positive action, as defined in subsection (4), when recruiting employees and making appointments.
(2) Any act by a public authority which contravenes the provisions of this section is actionable as a breach of public duty.
(3) For the purposes of this section "public authority" has the same meaning as in section 6 of the Human Rights Act 1998 (c. 42).
(4) For the purposes of this section, "affirmative or positive action" means any action that is intended to give a benefit or encouragement to a particular group or groups of people of people, on the basis of the-
(c) sexual orientation,
(g) religion, or
(h) socio-economic status
of members of that group
(5) Such actions include, but are not restricted to, the setting and pursuit of targets in respect of any of the characteristics specified in subsection (4) for the purposes of-
(a) recruitment, or
(b) appointment of persons to any scheme, programme, post or other similar such position.'.
Amendment 33, in clause 38, page 22, line 17, leave out 'on at least two other occasions'.
Amendment 60, in clause 62, page 40, line 32 , leave out paragraph (a).
Amendment 61, page 40, line 33, leave out from 'work' to end of line 34.
Amendment 63, page 41, line 7, leave out paragraph (a).
Amendment 64, page 41, line 13, leave out subsection (6).
Amendment 65, in clause 63, page 41, line 22 , leave out from 'B,' to end and insert
'B's term is modified so as not to be more favourable;'.
Amendment 66, page 41, line 24, leave out from 'B,' to end and insert
'B's terms are modified so as to remove such a term;'.
Amendment 67, in clause 64, page 41, line 35, leave out from 'B,' to end of line 36 and insert
'B's term is modified so as not to be more favourable;'.
Amendment 1, page 43, line 1, leave out clause 66.
Amendment 68, in clause 66, page 43, line 14 , leave out subsection (3).
Amendment 69, page 44, line 23, leave out clause 71.
Amendment 70, page 47, line 2, leave out clause 74.
Amendment 13, page 47, line 27, leave out clause 75.
Amendment 34, in clause 78, page 49, leave out line 39.