Equality Bill

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
82

(a)
a complaint relating to a breach of an equality clause or rule, or
(b)
a question referred to the tribunal by virtue of section 127(2).
(2)
Where a question arises in the proceedings as to whether one person’s work is
of equal value to another’s, the tribunal may, before determining the question,
require a member of the panel of independent experts to prepare a report on
5
the question.
(3)
The tribunal may withdraw a requirement that it makes under subsection (2);
and, if it does so, it may—
(a)
request the panel member to provide it with specified documentation;
(b)
make such other requests to that member as are connected with the
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withdrawal of the requirement.
(4)
If the tribunal requires the preparation of a report under subsection (2) (and
does not withdraw the requirement), it must not determine the question unless
it has received the report.
(5)
Subsection (6) applies where—
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(a)
a question arises in the proceedings as to whether the work of one
person (A) is of equal value to the work of another (B), and
(b)
A’s work and B’s work have been given different values by a job
evaluation study.
(6)
The tribunal must determine that A’s work is not of equal value to B’s work
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unless it has reasonable grounds for suspecting that the evaluation contained
in the study—
(a)
was based on a system that discriminates because of sex, or
(b)
is otherwise unreliable.
(7)
For the purposes of subsection (6)(a), a system discriminates because of sex if a
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difference (or coincidence) between values that the system sets on different
demands is not justifiable regardless of the sex of the person on whom the
demands are made.
(8)
A reference to a member of the panel of independent experts is to a person—
(a)
who is for the time being designated as such by the Advisory,
30
Conciliation and Arbitration Service (ACAS) for the purposes of this
section, and
(b)
who is neither a member of the Council of ACAS nor one of its officers
or members of staff.
(9)
“Job evaluation study” has the meaning given in section 80(5).
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131
Remedies in non-pensions cases
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint relating to a breach of an equality clause, other than a breach with
respect to membership of or rights under an occupational pension scheme.
(2)
If the court or tribunal finds that there has been a breach of the equality clause,
40
it may—
(a)
make a declaration as to the rights of the parties in relation to the
matters to which the proceedings relate;
(b)
order an award by way of arrears of pay or damages in relation to the
complainant.
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Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
83

(3)
The court or tribunal may not order a payment under subsection (2)(b) in
respect of a time before the arrears day.
(4)
In relation to proceedings in England and Wales, the arrears day is, in a case
mentioned in the first column of the table, the day mentioned in the second
column.
5

Case
Arrears day

A standard case
The day falling 6 years before the day on

which the proceedings were instituted.

A concealment case or an
The day on which the breach first

incapacity case (or a case
occurred.

10

which is both).

(5)
In relation to proceedings in Scotland, the arrears day is the first day of—
(a)
the period of 5 years ending with the day on which the proceedings
were commenced, or
(b)
if the case involves a relevant incapacity, or a relevant fraud or error,
15
the period of 20 years ending with that day.
132
Remedies in pensions cases
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint relating to—
(a)
a breach of an equality rule, or
20
(b)
a breach of an equality clause with respect to membership of, or rights
under, an occupational pension scheme.
(2)
If the court or tribunal finds that there has been a breach as referred to in
subsection (1)—
(a)
it may make a declaration as to the rights of the parties in relation to the
25
matters to which the proceedings relate;
(b)
it must not order arrears of benefits or damages or any other amount to
be paid to the complainant.
(3)
Subsection (2)(b) does not apply if the proceedings are proceedings to which
section 133 applies.
30
(4)
If the breach relates to a term on which persons become members of the
scheme, the court or tribunal may declare that the complainant is entitled to be
admitted to the scheme with effect from a specified date.
(5)
A date specified for the purposes of subsection (4) must not be before 8 April
1976.
35
(6)
If the breach relates to a term on which members of the scheme are treated, the
court or tribunal may declare that the complainant is, in respect of a specified
period, entitled to secure the rights that would have accrued if the breach had
not occurred.
(7)
A period specified for the purposes of subsection (6) must not begin before 17
40
May 1990.

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
84

(8)
If the court or tribunal makes a declaration under subsection (6), the employer
must provide such resources to the scheme as are necessary to secure for the
complainant (without contribution or further contribution by the complainant
or other members) the rights referred to in that subsection.
133
Remedies in claims for arrears brought by pensioner members
5
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint by a pensioner member of an occupational pension scheme
relating to a breach of an equality clause or rule with respect to a term on which
the member is treated.
(2)
If the court or tribunal finds that there has been a breach referred to in
10
subsection (1), it may—
(a)
make a declaration as to the rights of the complainant and the
respondent in relation to the matters to which the proceedings relate;
(b)
order an award by way of arrears of benefits or damages or of any other
amount in relation to the complainant.
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(3)
The court or tribunal must not order an award under subsection (2)(b) in
respect of a time before the arrears day.
(4)
If the court or tribunal orders an award under subsection (2)(b), the employer
must provide such resources to the scheme as are necessary to secure for the
complainant (without contribution or further contribution by the complainant
20
or other members) the amount of the award.
(5)
In relation to proceedings in England and Wales, the arrears day is, in a case
mentioned in the first column of the table, the day mentioned in the second
column.

Case
Arrears day

25

A standard case
The day falling 6 years before the day on

which the proceedings were commenced.

A concealment case or an
The day on which the breach first

incapacity case (or a case
occurred.

which is both).

30
(6)
In relation to proceedings in Scotland, the arrears day is the first day of—
(a)
the period of 5 years ending with the day on which the proceedings
were commenced, or
(b)
if the case involves a relevant incapacity, or a relevant fraud or error,
the period of 20 years ending with that day.
35
134
Supplementary
(1)
This section applies for the purposes of sections 131 to 133.
(2)
A standard case is a case which is not—
(a)
a concealment case,
(b)
an incapacity case, or
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(c)
a concealment case and an incapacity case.

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
85

(3)
A concealment case in relation to an equality clause is a case where—
(a)
the responsible person deliberately concealed a qualifying fact (as
defined by section 129) from the worker, and
(b)
the worker commenced the proceedings before the end of the period of
6 years beginning with the day on which the worker discovered (or
5
could with reasonable diligence have discovered) the qualifying fact.
(4)
A concealment case in relation to an equality rule is a case where—
(a)
the employer or the trustees or managers of the occupational pension
scheme in question deliberately concealed a qualifying fact (as defined
by section 129) from the member, and
10
(b)
the member commenced the proceedings before the end of the period
of 6 years beginning with the day on which the member discovered (or
could with reasonable diligence have discovered) the qualifying fact.
(5)
An incapacity case is a case where the worker or member—
(a)
had an incapacity when the breach first occurred, and
15
(b)
commenced the proceedings before the end of the period of 6 years
beginning with the day on which the worker or member ceased to have
the incapacity.
(6)
A case involves a relevant incapacity or a relevant fraud or error if the period
of 5 years referred to in section 131(5)(a) is, as a result of subsection (7) below,
20
reckoned as a period of more than 20 years.
(7)
For the purposes of the reckoning referred to in subsection (6), no account is to
be taken of time when the worker or member—
(a)
had an incapacity, or
(b)
was induced by a relevant fraud or error to refrain from commencing
25
proceedings (not being a time after the worker or member could with
reasonable diligence have discovered the fraud or error).
(8)
For the purposes of subsection (7)—
(a)
a fraud is relevant in relation to an equality clause if it is a fraud on the
part of the responsible person;
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(b)
an error is relevant in relation to an equality clause if it is induced by
the words or conduct of the responsible person;
(c)
a fraud is relevant in relation to an equality rule if it is a fraud on the
part of the employer or the trustees or managers of the scheme;
(d)
an error is relevant in relation to an equality rule if it is induced by the
35
words or conduct of the employer or the trustees or managers of the
scheme.
(9)
A reference in subsection (8) to the responsible person, the employer or the
trustees or managers includes a reference to a person acting on behalf of the
person or persons concerned.
40
(10)
In relation to terms of service, a reference in section 131(5) or subsection (3) or
(5)(b) of this section to commencing proceedings is a reference to making a
service complaint.
(11)
A reference to a pensioner member of a scheme includes a reference to a person
who is entitled to the present payment of pension or other benefits derived
45
through a member.
(12)
In relation to proceedings before a court—

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous
86

(a)
a reference to a complaint is to be read as a reference to a claim, and
(b)
a reference to a complainant is to be read as a reference to a claimant.
Chapter 5
Miscellaneous
135
Burden of proof
5
(1)
This section applies to any proceedings relating to a contravention of this Act.
(2)
If there are facts from which the court could decide, in the absence of any other
explanation, that a person (A) contravened the provision concerned, the court
must hold that the contravention occurred.
(3)
But subsection (2) does not apply if A shows that A did not contravene the
10
provision.
(4)
The reference to a contravention of this Act includes a reference to a breach of
an equality clause or rule.
(5)
This section does not apply to proceedings for an offence under this Act.
(6)
A reference to the court includes a reference to—
15
(a)
an employment tribunal;
(b)
the Asylum and Immigration Tribunal;
(c)
the Special Immigration Appeals Commission;
(d)
the First-tier Tribunal;
(e)
the Special Educational Needs Tribunal for Wales;
20
(f)
an Additional Support Needs Tribunal for Scotland.
136
Previous findings
(1)
A finding in relevant proceedings in respect of an act which has become final
is to be treated as conclusive in proceedings under this Act.
(2)
Relevant proceedings are proceedings before a court or employment tribunal
25
under any of the following—
(a)
section 19 or 20 of the Race Relations Act 1968 (c. 71);
(b)
the Equal Pay Act 1970 (c. 41);
(c)
the Sex Discrimination Act 1975 (c. 65);
(d)
the Race Relations Act 1976 (c. 74);
30
(e)
section 6(4A) of the Sex Discrimination Act 1986 (c. 59);
(f)
the Disability Discrimination Act 1995 (c. 50);
(g)
Part 2 of the Equality Act 2006 (c. 3);
(h)
the Employment Equality (Religion and Belief) Regulations 2003 (S.I.
2003/1660);
35
(i)
the Employment Equality (Sexual Orientation) Regulations 2003 (S.I.
2003/1661);
(j)
the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031);
(k)
the Equality Act (Sexual Orientation) Regulations 2007 (S.I. 2007/1263).
(3)
A finding becomes final—
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous
87

(a)
when an appeal against the finding is dismissed, withdrawn or
abandoned, or
(b)
when the time for appealing expires without an appeal having been
brought.
137
Obtaining information, etc.
5
(1)
In this section—
(a)
P is a person who thinks that a contravention of this Act has occurred
in relation to P;
(b)
R is a person who P thinks has contravened this Act.
(2)
A Minister of the Crown must by order prescribe—
10
(a)
forms by which P may question R on any matter which is or may be
relevant;
(b)
forms by which R may answer questions by P.
(3)
A question by P or an answer by R is admissible as evidence in proceedings
under this Act (whether or not the question or answer is contained in a
15
prescribed form).
(4)
A court or tribunal may draw an inference from—
(a)
a failure by R to answer a question by P before the end of the period of
8 weeks beginning with the day on which the question is served;
(b)
an evasive or equivocal answer.
20
(5)
Subsection (4) does not apply if—
(a)
R reasonably asserts that to have answered differently or at all might
have prejudiced a criminal matter;
(b)
R reasonably asserts that to have answered differently or at all would
have revealed the reason for not commencing or not continuing
25
criminal proceedings;
(c)
R’s answer is of a kind specified for the purposes of this paragraph by
order of a Minister of the Crown;
(d)
R’s answer is given in circumstances specified for the purposes of this
paragraph by order of a Minister of the Crown;
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(e)
R’s failure to answer occurs in circumstances specified for the purposes
of this paragraph by order of a Minister of the Crown.
(6)
The reference to a contravention of this Act includes a reference to a breach of
an equality clause or rule.
(7)
A Minister of the Crown may by order—
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(a)
prescribe the period within which a question must be served to be
admissible under subsection (3);
(b)
prescribe the manner in which a question by P, or an answer by R, may
be served.
(8)
This section—
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(a)
does not affect any other enactment or rule of law relating to interim or
preliminary matters in proceedings before a county court, sheriff or
employment tribunal, and
(b)
has effect subject to any enactment or rule of law regulating the
admissibility of evidence in such proceedings.
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