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Session 2009 - 10
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Equality Bill


Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

36

 

(5)   

A reference to conferring a relevant qualification includes a reference to

renewing or extending the conferment of a relevant qualification.

(6)   

A competence standard is an academic, medical or other standard applied for

the purpose of determining whether or not a person has a particular level of

competence or ability.

5

Employment services

55      

Employment service-providers

(1)   

A person (an “employment service-provider”) concerned with the provision of

an employment service must not discriminate against a person—

(a)   

in the arrangements the service-provider makes for selecting persons to

10

whom to provide, or to whom to offer to provide, the service;

(b)   

as to the terms on which the service-provider offers to provide the

service to the person;

(c)   

by not offering to provide the service to the person.

(2)   

An employment service-provider (A) must not, in relation to the provision of

15

an employment service, discriminate against a person (B)—

(a)   

as to the terms on which A provides the service to B;

(b)   

by not providing the service to B;

(c)   

by terminating the provision of the service to B;

(d)   

by subjecting B to any other detriment.

20

(3)   

An employment service-provider must not, in relation to the provision of an

employment service, harass—

(a)   

a person who asks the service-provider to provide the service;

(b)   

a person for whom the service-provider provides the service.

(4)   

An employment service-provider (A) must not victimise a person (B)—

25

(a)   

in the arrangements A makes for selecting persons to whom to provide,

or to whom to offer to provide, the service;

(b)   

as to the terms on which A offers to provide the service to B;

(c)   

by not offering to provide the service to B.

(5)   

An employment service-provider (A) must not, in relation to the provision of

30

an employment service, victimise a person (B)—

(a)   

as to the terms on which A provides the service to B;

(b)   

by not providing the service to B;

(c)   

by terminating the provision of the service to B;

(d)   

by subjecting B to any other detriment.

35

(6)   

A duty to make reasonable adjustments applies to an employment service-

provider, except in relation to the provision of a vocational service.

(7)   

The duty imposed by section 29(7)(a) applies to a person concerned with the

provision of a vocational service; but a failure to comply with that duty in

relation to the provision of a vocational service is a contravention of this Part

40

for the purposes of Part 9 (enforcement).

 
 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

37

 

56      

Interpretation

(1)   

This section applies for the purposes of section 55.

(2)   

The provision of an employment service includes—

(a)   

the provision of vocational training;

(b)   

the provision of vocational guidance;

5

(c)   

making arrangements for the provision of vocational training or

vocational guidance;

(d)   

the provision of a service for finding employment for persons;

(e)   

the provision of a service for supplying employers with persons to do

work;

10

(f)   

the provision of a service in pursuance of arrangements made under

section 2 of the Employment and Training Act 1973 (c. 50) (functions of

the Secretary of State relating to employment);

(g)   

the provision of a service in pursuance of arrangements made or a

direction given under section 10 of that Act (careers services);

15

(h)   

the exercise of a function in pursuance of arrangements made under

section 2(3) of the Enterprise and New Towns (Scotland) Act 1990

(c. 35) (functions of Scottish Enterprise, etc. relating to employment);

(i)   

an assessment related to the conferment of a relevant qualification

within the meaning of section 53 above (except in so far as the

20

assessment is by the qualifications body which confers the

qualification).

(3)   

This section does not apply in relation to training or guidance in so far as it is

training or guidance in relation to which another provision of this Part applies.

(4)   

This section does not apply in relation to training or guidance for pupils of a

25

school to which section 85 applies in so far as it is training or guidance to which

the responsible body of the school has power to afford access (whether as the

responsible body of that school or as the responsible body of any other school

at which the training or guidance is provided).

(5)   

This section does not apply in relation to training or guidance for students of

30

an institution to which section 91 applies in so far as it is training or guidance

to which the governing body of the institution has power to afford access.

(6)   

“Vocational training” means—

(a)   

training for employment, or

(b)   

work experience (including work experience the duration of which is

35

not agreed until after it begins).

(7)   

A reference to the provision of a vocational service is a reference to the

provision of an employment service within subsection (2)(a) to (d) (or an

employment service within subsection (2)(f) or (g) in so far as it is also an

employment service within subsection (2)(a) to (d)); and for that purpose—

40

(a)   

the references to an employment service within subsection (2)(a) do not

include a reference to vocational training within the meaning given by

subsection (6)(b), and

(b)   

the references to an employment service within subsection (2)(d) also

include a reference to a service for assisting persons to retain

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employment.

(8)   

A reference to training includes a reference to facilities for training.

 
 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

38

 

Trade organisations

57      

Trade organisations

(1)   

A trade organisation (A) must not discriminate against a person (B)—

(a)   

in the arrangements A makes for deciding to whom to offer

membership of the organisation;

5

(b)   

as to the terms on which it is prepared to admit B as a member;

(c)   

by not accepting B’s application for membership.

(2)   

A trade organisation (A) must not discriminate against a member (B)—

(a)   

in the way it affords B access, or by not affording B access, to

opportunities for receiving a benefit, facility or service;

10

(b)   

by depriving B of membership;

(c)   

by varying the terms on which B is a member;

(d)   

by subjecting B to any other detriment.

(3)   

A trade organisation must not, in relation to membership of it, harass—

(a)   

a member, or

15

(b)   

an applicant for membership.

(4)   

A trade organisation (A) must not victimise a person (B)—

(a)   

in the arrangements A makes for deciding to whom to offer

membership of the organisation;

(b)   

as to the terms on which it is prepared to admit B as a member;

20

(c)   

by not accepting B’s application for membership.

(5)   

A trade organisation (A) must not victimise a member (B)—

(a)   

in the way it affords B access, or by not affording B access, to

opportunities for receiving a benefit, facility or service;

(b)   

by depriving B of membership;

25

(c)   

by varying the terms on which B is a member;

(d)   

by subjecting B to any other detriment.

(6)   

A duty to make reasonable adjustments applies to a trade organisation.

(7)   

A trade organisation is—

(a)   

an organisation of workers,

30

(b)   

an organisation of employers, or

(c)   

any other organisation whose members carry on a particular trade or

profession for the purposes of which the organisation exists.

Local authority members

58      

Official business of members

35

(1)   

A local authority must not discriminate against a member of the authority in

relation to the member’s carrying out of official business—

(a)   

in the way the authority affords the member access, or by not affording

the member access, to opportunities for training or for receiving any

other facility;

40

(b)   

by subjecting the member to any other detriment.

 
 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

39

 

(2)   

A local authority must not, in relation to a member’s carrying-out of official

business, harass the member.

(3)   

A local authority must not victimise a member of the authority in relation to

the member’s carrying out of official business—

(a)   

in the way the authority affords the member access, or by not affording

5

the member access, to opportunities for training or for receiving any

other facility;

(b)   

by subjecting the member to any other detriment.

(4)   

A member of a local authority is not subjected to a detriment for the purposes

of subsection (1)(b) or (3)(b) only because the member is—

10

(a)   

not appointed or elected to an office of the authority,

(b)   

not appointed or elected to, or to an office of, a committee or sub-

committee of the authority, or

(c)   

not appointed or nominated in exercise of an appointment power of the

authority.

15

(5)   

In subsection (4)(c), an appointment power of a local authority is a power of the

authority, or of a group of bodies including the authority, to make—

(a)   

appointments to a body;

(b)   

nominations for appointment to a body.

(6)   

A duty to make reasonable adjustments applies to a local authority.

20

59      

Interpretation

(1)   

This section applies for the purposes of section 58.

(2)   

“Local authority” means—

(a)   

a county council in England;

(b)   

a district council in England;

25

(c)   

the Greater London Authority;

(d)   

a London borough council;

(e)   

the Common Council of the City of London;

(f)   

the Council of the Isles of Scilly;

(g)   

a parish council in England;

30

(h)   

a county council in Wales;

(i)   

a community council in Wales;

(j)   

a county borough council in Wales;

(k)   

a council constituted under section 2 of the Local Government etc.

(Scotland) Act 1994 (c. 39);

35

(l)   

a community council in Scotland.

(3)   

A Minister of the Crown may by order amend subsection (2) so as to add, vary

or omit a reference to a body which exercises functions that have been

conferred on a local authority within paragraph (a) to (l).

(4)   

A reference to the carrying-out of official business by a person who is a

40

member of a local authority is a reference to the doing of anything by the

person—

(a)   

as a member of the authority,

 
 

Equality Bill
Part 5 — Work
Chapter 1 — Employment, etc.

40

 

(b)   

as a member of a body to which the person is appointed by, or

appointed following nomination by, the authority or a group of bodies

including the authority, or

(c)   

as a member of any other public body.

(5)   

“Member”, in relation to the Greater London Authority, means—

5

(a)   

the Mayor of London;

(b)   

a member of the London Assembly.

Recruitment

60      

Enquiries about disability and health

(1)   

This section applies where—

10

(a)   

a person (A) does not proceed with an application by another person

(B) for work, after asking about B’s health but before making a relevant

decision, and

(b)   

B brings proceedings before an employment tribunal on a complaint

that A’s conduct in relation to B’s application is a contravention of a

15

relevant disability provision.

(2)   

In the application of section 135 to the proceedings, the circumstances

described in subsection (1)(a) are to be treated for the purposes of subsection

(2) of that section as facts from which the tribunal could decide that A

contravened the provision.

20

(3)   

The reference in subsection (1)(a) to making a relevant decision is—

(a)   

if A requires applicants to undergo one or more assessments, a

reference to deciding in the light of the first assessment which

applications to proceed with, or

(b)   

in any other case, a reference to deciding to whom to offer the work

25

(whether by a conditional or unconditional offer).

(4)   

An assessment is an interview or other process designed to give an indication

of a person’s suitability for the work concerned; but a condition to undergo an

assessment is not to be regarded as a condition for the purposes of subsection

(3)(b).

30

(5)   

This section does not apply to a question that A asks in so far as asking the

question is necessary for the purpose of—

(a)   

establishing whether a duty to make reasonable adjustments is or will

be imposed on A in relation to B in connection with a requirement to

undergo an assessment,

35

(b)   

monitoring diversity in the range of persons applying to A for work,

(c)   

taking action to which section 157 would apply if references in that

section to persons who share (or do not share) a protected characteristic

were references to disabled persons (or persons who are not disabled)

and the reference to the characteristic were a reference to disability, or

40

(d)   

if A applies in relation to the work a requirement to have a particular

disability, establishing whether B has that disability.

(6)   

Subsection (5)(d) applies only if A shows that, having regard to the nature or

context of the work—

(a)   

the requirement is an occupational requirement, and

45

 
 

Equality Bill
Part 5 — Work
Chapter 2 — Occupational pension schemes

41

 

(b)   

the application of the requirement is a proportionate means of

achieving a legitimate aim.

(7)   

“Work” means employment, contract work, a position as a partner, a position

as a member of an LLP, a pupillage or tenancy, being taken as a devil,

membership of a stable, an appointment to a personal or public office, or the

5

provision of an employment service; and the reference in subsection (3)(b) to

deciding to whom to offer work is, in relation to contract work, to be read as a

reference to deciding who to allow to do the work.

(8)   

The following, so far as relating to discrimination within section 13 because of

disability, are relevant disability provisions—

10

(a)   

section 39(1)(a) or (c);

(b)   

section 41(1)(b);

(c)   

section 44(1)(a) or (c);

(d)   

section 45(1)(a) or (c);

(e)   

section 47(1)(a) or (c);

15

(f)   

section 48(1)(a) or (c);

(g)   

section 49(3)(a) or (c);

(h)   

section 50(3)(a) or (c);

(i)   

section 51(1);

(j)   

section 55(1)(a) or (c).

20

(9)   

For the purposes of this section, whether or not a person has a disability is to

be regarded as an aspect of that person’s health.

(10)   

This section does not apply to anything done for the purpose of vetting

applicants for work for reasons of national security.

(11)   

Asking about the health of an applicant for work is not of itself a contravention

25

of this Act by virtue of section 13 (although action taken in reliance on the

information given in response may be).

Chapter 2

Occupational pension schemes

61      

Non-discrimination rule

30

(1)   

An occupational pension scheme must be taken to include a non-

discrimination rule.

(2)   

A non-discrimination rule is a provision by virtue of which a responsible

person (A)—

(a)   

must not discriminate against another person (B) in carrying out any of

35

A’s functions in relation to the scheme;

(b)   

must not, in relation to the scheme, harass B;

(c)   

must not, in relation to the scheme, victimise B.

(3)   

The provisions of an occupational pension scheme have effect subject to the

non-discrimination rule.

40

(4)   

The following are responsible persons—

(a)   

the trustees or managers of the scheme;

(b)   

an employer whose employees are, or may be, members of the scheme;

 
 

Equality Bill
Part 5 — Work
Chapter 2 — Occupational pension schemes

42

 

(c)   

a person exercising an appointing function in relation to an office the

holder of which is, or may be, a member of the scheme.

(5)   

A non-discrimination rule does not apply in relation to a person who is a

pension credit member of a scheme.

(6)   

An appointing function is any of the following—

5

(a)   

the function of appointing a person;

(b)   

the function of terminating a person’s appointment;

(c)   

the function of recommending a person for appointment;

(d)   

the function of approving an appointment.

(7)   

A breach of a non-discrimination rule is a contravention of this Part for the

10

purposes of Part 9 (enforcement).

(8)   

It is not a breach of a non-discrimination rule for the employer or the trustees

or managers of a scheme to maintain or use in relation to the scheme rules,

practices, actions or decisions relating to age which are of a description

specified by order by a Minister of the Crown.

15

(9)   

An order authorising the use of rules, practices, actions or decisions which are

not in use before the order comes into force must not be made unless the

Minister consults such persons as the Minister thinks appropriate.

(10)   

A non-discrimination rule does not have effect in relation to an occupational

pension scheme in so far as an equality rule has effect in relation to it (or would

20

have effect in relation to it but for Part 2 of Schedule 7).

(11)   

A duty to make reasonable adjustments applies to a responsible person.

62      

Non-discrimination alterations

(1)   

This section applies if the trustees or managers of an occupational pension

scheme do not have power to make non-discrimination alterations to the

25

scheme.

(2)   

This section also applies if the trustees or managers of an occupational pension

scheme have power to make non-discrimination alterations to the scheme but

the procedure for doing so—

(a)   

is liable to be unduly complex or protracted, or

30

(b)   

involves obtaining consents which cannot be obtained or which can be

obtained only with undue delay or difficulty.

(3)   

The trustees or managers may by resolution make non-discrimination

alterations to the scheme.

(4)   

Non-discrimination alterations may have effect in relation to a period before

35

the date on which they are made.

(5)   

Non-discrimination alterations to an occupational pension scheme are such

alterations to the scheme as may be required for the provisions of the scheme

to have the effect that they have in consequence of section 61(3).

63      

Communications

40

(1)   

In their application to communications the following provisions apply in

relation to a disabled person who is a pension credit member of an

 
 

 
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