Equality Bill

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
47

Pregnancy and maternity equality
72
Relevant types of work
Sections 73 to 76 apply where a woman—
(a)
is employed, or
(b)
holds a personal or public office.
5
73
Maternity equality clause
(1)
If the terms of the woman’s work do not (by whatever means) include a
maternity equality clause, they are to be treated as including one.
(2)
A maternity equality clause is a provision that, in relation to the terms of the
woman’s work, has the effect referred to in section 74(1), (6) and (8).
10
(3)
In the case of a term relating to membership of or rights under an occupational
pension scheme, a maternity equality clause has only such effect as a maternity
equality rule would have.
74
Maternity equality clause: pay
(1)
A term of the woman’s work that provides for maternity-related pay to be
15
calculated by reference to her pay at a particular time is, if each of the following
three conditions is satisfied, modified as mentioned in subsection (5).
(2)
The first condition is that, after the time referred to in subsection (1) but before
the end of the protected period—
(a)
her pay increases, or
20
(b)
it would have increased had she not been on maternity leave.
(3)
The second condition is that the maternity-related pay is not—
(a)
what her pay would have been had she not been on maternity leave, or
(b)
the difference between the amount of statutory maternity pay to which
she is entitled and what her pay would have been had she not been on
25
maternity leave.
(4)
The third condition is that the terms of her work do not provide for the
maternity-related pay to be subject to—
(a)
an increase as mentioned in subsection (2)(a), or
(b)
an increase that would have occurred as mentioned in subsection (2)(b).
30
(5)
The modification referred to in subsection (1) is a modification to provide for
the maternity-related pay to be subject to—
(a)
any increase as mentioned in subsection (2)(a), or
(b)
any increase that would have occurred as mentioned in subsection
(2)(b).
35
(6)
A term of her work that—
(a)
provides for pay within subsection (7), but
(b)
does not provide for her to be given the pay in circumstances in which
she would have been given it had she not been on maternity leave,

is modified so as to provide for her to be given it in circumstances in which it
40
would normally be given.

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
48

(7)
Pay is within this subsection if it is—
(a)
pay (including pay by way of bonus) in respect of times before the
woman is on maternity leave,
(b)
pay by way of bonus in respect of times when she is on compulsory
maternity leave, or
5
(c)
pay by way of bonus in respect of times after the end of the protected
period.
(8)
A term of the woman’s work that—
(a)
provides for pay after the end of the protected period, but
(b)
does not provide for it to be subject to an increase to which it would
10
have been subject had she not been on maternity leave,

is modified so as to provide for it to be subject to the increase.
(9)
Maternity-related pay is pay (other than statutory maternity pay) to which a
woman is entitled—
(a)
as a result of being pregnant, or
15
(b)
in respect of times when she is on maternity leave.
(10)
A reference to the protected period is to be construed in accordance with
section 18.
75
Maternity equality rule
(1)
If an occupational pension scheme does not include a maternity equality rule,
20
it is to be treated as including one.
(2)
A maternity equality rule is a provision that has the effect set out in subsections
(3) and (4).
(3)
If a relevant term does not treat time when the woman is on maternity leave as
it treats time when she is not, the term is modified so as to treat time when she
25
is on maternity leave as time when she is not.
(4)
If a term confers a relevant discretion capable of being exercised so that time
when she is on maternity leave is treated differently from time when she is not,
the term is modified so as not to allow the discretion to be exercised in that
way.
30
(5)
A term is relevant if it is—
(a)
a term relating to membership of the scheme,
(b)
a term relating to the accrual of rights under the scheme, or
(c)
a term providing for the determination of the amount of a benefit
payable under the scheme.
35
(6)
A discretion is relevant if its exercise is capable of affecting—
(a)
membership of the scheme,
(b)
the accrual of rights under the scheme, or
(c)
the determination of the amount of a benefit payable under the scheme.
(7)
This section does not require the woman’s contributions to the scheme in
40
respect of time when she is on maternity leave to be determined otherwise than
by reference to the amount she is paid in respect of that time.

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
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(8)
This section, so far as relating to time when she is on ordinary maternity leave
but is not being paid by her employer, applies only in a case where the
expected week of childbirth began on or after 6 April 2003.
(9)
This section, so far as relating to time when she is on additional maternity leave
but is not being paid by her employer—
5
(a)
does not apply to the accrual of rights under the scheme in any case;
(b)
applies for other purposes only in a case where the expected week of
childbirth began on or after 5 October 2008.
(10)
In this section—
(a)
a reference to being on maternity leave includes a reference to having
10
been on maternity leave, and
(b)
a reference to being paid by the employer includes a reference to
receiving statutory maternity pay from the employer.
76
Exclusion of pregnancy and maternity discrimination provisions
(1)
The relevant pregnancy and maternity discrimination provision has no effect
15
in relation to a term of the woman’s work that is modified by a maternity
equality clause or rule.
(2)
The inclusion in the woman’s terms of a term that requires modification by
virtue of section 73(2) or (3) is not pregnancy and maternity discrimination for
the purposes of the relevant pregnancy and maternity discrimination
20
provision.
(3)
The relevant pregnancy and maternity discrimination provision is, in relation
to a description of work given in the first column of the table, the provision
referred to in the second column so far as relating to pregnancy and maternity.

Description of work
Provision

25

Employment
Section 39(2)

Appointment to a personal office
Section 49(6)

Appointment to a public office
Section 50(6)

Disclosure of information
77
Discussions with colleagues
30
(1)
A term of a person’s work that prevents or restricts the person (P) from being
involved in discussions with colleagues about the terms of P’s work is
unenforceable against P in so far as P is involved in a relevant pay discussion.
(2)
A relevant pay discussion is a discussion with a colleague—
(a)
which is about pay, and
35
(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—

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
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(a)
seeking the disclosure by a colleague of information;
(b)
disclosing information to a colleague;
(c)
receiving information disclosed by a colleague.
(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
(5)
The relevant victimisation provision is, in relation to a description of work
specified in the first column of the table, section 27 so far as it applies for the
purposes of a provision mentioned in the second column.

Description of work
Provision by virtue of which

section 27 has effect

10

Employment
  Section 39(3) or (4)

Appointment to a personal office
  Section 49(5) or (8)

Appointment to a public office
  Section 50(5) or (9)

(6)
A reference to a colleague includes a reference to a person who used to be a
colleague in relation to the work in question.
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78
Gender pay gap information
(1)
A Minister of the Crown may by regulations require employers to publish
information relating to the pay of employees for the purpose of showing
whether, by reference to factors of such description as is prescribed, there are
differences in the pay of male and female employees.
20
(2)
This section does not apply to—
(a)
an employer who has fewer than 250 employees;
(b)
a person specified in Schedule 19;
(c)
a government department or part of the armed forces not specified in
that Schedule.
25
(3)
The regulations may prescribe—
(a)
descriptions of employer;
(b)
descriptions of employee;
(c)
how to calculate the number of employees that an employer has;
(d)
descriptions of information;
30
(e)
the time at which information is to be published;
(f)
the form and manner in which it is to be published.
(4)
Regulations under subsection (3)(e) may not require an employer, after the first
publication of information, to publish information more frequently than at
intervals of 12 months.
35
(5)
The regulations 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
40
prescribed.

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Part 5 — Work
Chapter 3 — Equality of terms
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(6)
The reference to a failure to comply with the regulations includes a reference
to a failure by a person acting on behalf of an employer.
Supplementary
79
Colleagues
(1)
This section applies for the purposes of this Chapter.
5
(2)
If A is employed, B is a colleague of A’s only if subsection (3) or (4) applies.
(3)
This subsection applies if—
(a)
B is employed by A’s employer or by an associate of A’s employer, and
(b)
A and B work at the same establishment.
(4)
This subsection applies if—
10
(a)
B is employed by A’s employer or an associate of A’s employer,
(b)
B works at an establishment other than the one at which A works, and
(c)
common terms apply at the establishments (either generally or as
between A and B).
(5)
If A holds a personal or public office, B is a colleague of A’s only if—
15
(a)
B holds a personal or public office, and
(b)
the person responsible for paying A is also responsible for paying B.
(6)
If A is a relevant member of the House of Commons staff, B is a colleague of
A’s only if—
(a)
B is employed by the person who is A’s employer under subsection (6)
20
of section 195 of the Employment Rights Act 1996 (c. 18), or
(b)
if subsection (7) of that section applies in A’s case, B is employed by the
person who is A’s employer under that subsection.
(7)
If A is a relevant member of the House of Lords staff, B is a colleague of A’s
only if B is also a relevant member of the House of Lords staff.
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(8)
Section 42 does not apply to this Chapter; accordingly, for the purposes of this
Chapter only, holding the office of constable is to be treated as holding a
personal office.
(9)
For the purposes of this section, employers are associated if—
(a)
one is a company of which the other (directly or indirectly) has control,
30
or
(b)
both are companies of which a third person (directly or indirectly) has
control.
80
Interpretation and exceptions
(1)
This section applies for the purposes of this Chapter.
35
(2)
The terms of a person’s work are—
(a)
if the person is employed, the terms of the person’s employment that
are in the person’s contract of employment, contract of apprenticeship
or contract to do work personally;
(b)
if the person holds a personal or public office, the terms of the person’s
40
appointment to the office.

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Part 5 — Work
Chapter 4 — Supplementary
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(3)
If work is not done at an establishment, it is to be treated as done at the
establishment with which it has the closest connection.
(4)
A person (P) is the responsible person in relation to another person if—
(a)
P is the other’s employer;
(b)
P is responsible for paying remuneration in respect of a personal or
5
public office that the other holds.
(5)
A job evaluation study is a study undertaken with a view to evaluating, in
terms of the demands made on a person by reference to factors such as effort,
skill and decision-making, the jobs to be done—
(a)
by some or all of the workers in an undertaking or group of
10
undertakings, or
(b)
in the case of the armed forces, by some or all of the members of the
armed forces.
(6)
In the case of Crown employment, the reference in subsection (5)(a) to an
undertaking is to be construed in accordance with section 191(4) of the
15
Employment Rights Act 1996 (c. 18).
(7)
“Civil partnership status” has the meaning given in section 124(1) of the
Pensions Act 1995 (c. 26).
(8)
Schedule 7 (exceptions) has effect.
Chapter 4
20
Supplementary
81
Ships and hovercraft
(1)
This Part applies in relation to—
(a)
work on ships,
(b)
work on hovercraft, and
25
(c)
seafarers,

only in such circumstances as are prescribed.
(2)
For the purposes of this section, it does not matter whether employment arises
or work is carried out within or outside the United Kingdom.
(3)
“Ship” has the same meaning as in the Merchant Shipping Act 1995.
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(4)
“Hovercraft” has the same meaning as in the Hovercraft Act 1968.
(5)
“Seafarer” means a person employed or engaged in any capacity on board a
ship or hovercraft.
(6)
Nothing in this section affects the application of any other provision of this Act
to conduct outside England and Wales or Scotland.
35
82
Offshore work
(1)
Her Majesty may by Order in Council provide that in the case of persons in
offshore work—
(a)
specified provisions of this Part apply (with or without modification);

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Part 5 — Work
Chapter 4 — Supplementary
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(b)
Northern Ireland legislation making provision for purposes
corresponding to any of the purposes of this Part applies (with or
without modification).
(2)
The Order may—
(a)
provide for these provisions, as applied by the Order, to apply to
5
individuals (whether or not British citizens) and bodies corporate
(whether or not incorporated under the law of a part of the United
Kingdom), whether or not such application affects activities outside the
United Kingdom;
(b)
make provision for conferring jurisdiction on a specified court or class
10
of court or on employment tribunals in respect of offences, causes of
action or other matters arising in connection with offshore work;
(c)
exclude from the operation of section 3 of the Territorial Waters
Jurisdiction Act 1878 (consents required for prosecutions) proceedings
for offences under the provisions mentioned in subsection (1) in
15
connection with offshore work;
(d)
provide that such proceedings must not be brought without such
consent as may be required by the Order.
(3)
“Offshore work” is work for the purposes of—
(a)
activities in the territorial sea adjacent to the United Kingdom,
20
(b)
activities such as are mentioned in subsection (2) of section 11 of the
Petroleum Act 1998 in waters within subsection (8)(b) or (c) of that
section, or
(c)
activities mentioned in paragraphs (a) and (b) of section 87(1) of the
Energy Act 2004 in waters to which that section applies.
25
(4)
Work includes employment, contract work, a position as a partner or as a
member of an LLP, or an appointment to a personal or public office.
(5)
Northern Ireland legislation includes an enactment contained in, or in an
instrument under, an Act that forms part of the law of Northern Ireland.
(6)
In the application to Northern Ireland of subsection (2)(b), the reference to
30
employment tribunals is to be read as a reference to industrial tribunals.
(7)
Nothing in this section affects the application of any other provision of this Act
to conduct outside England and Wales or Scotland.
83
Interpretation and exceptions
(1)
This section applies for the purposes of this Part.
35
(2)
“Employment” means—
(a)
employment under a contract of employment, a contract of
apprenticeship or a contract personally to do work;
(b)
Crown employment;
(c)
employment as a relevant member of the House of Commons staff;
40
(d)
employment as a relevant member of the House of Lords staff.
(3)
This Part applies to service in the armed forces as it applies to employment by
a private person; and for that purpose—
(a)
references to terms of employment, or to a contract of employment, are
to be read as including references to terms of service;
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