|
| |
|
| |
(1) | A Minister of the Crown may by regulations make provision— |
| |
(a) | for enabling an employment tribunal to include interest on an amount |
| |
awarded by it in proceedings under this Act; |
| |
(b) | specifying the manner in which, and the periods and rate by reference |
| 5 |
to which, the interest is to be determined. |
| |
(2) | A Minister of the Crown may by regulations modify the operation of an order |
| |
made under section 14 of the Employment Tribunals Act 1996 (power to make |
| |
provision as to interest on awards) in so far as it relates to an award in |
| |
proceedings under this Act. |
| 10 |
139 | Conduct giving rise to separate proceedings |
| |
(1) | This section applies in relation to conduct which has given rise to two or more |
| |
separate proceedings under this Act, with at least one being for a contravention |
| |
of section 110 (instructing, causing or inducing discrimination). |
| |
(2) | A court may transfer proceedings to an employment tribunal. |
| 15 |
(3) | An employment tribunal may transfer proceedings to a court. |
| |
(4) | A court or employment tribunal is to be taken for the purposes of this Part to |
| |
have jurisdiction to determine a claim or complaint transferred to it under this |
| |
| |
(a) | a reference to a claim within section 113(1) includes a reference to a |
| 20 |
claim transferred to a court under this section, and |
| |
(b) | a reference to a complaint within section 119(1) includes a reference to |
| |
a complaint transferred to an employment tribunal under this section. |
| |
(5) | A court or employment tribunal may not make a decision that is inconsistent |
| |
with an earlier decision in proceedings arising out of the conduct. |
| 25 |
| |
(a) | in relation to proceedings in England and Wales, a county court; |
| |
(b) | in relation to proceedings in Scotland, the sheriff. |
| |
| |
(1) | This section applies for the purposes of this Part. |
| 30 |
(2) | A reference to the responsible person, in relation to an equality clause or rule, |
| |
is to be construed in accordance with Chapter 3 of Part 5. |
| |
(3) | A reference to a worker is a reference to the person to the terms of whose work |
| |
the proceedings in question relate; and, for the purposes of proceedings |
| |
relating to an equality rule or a non-discrimination rule, a reference to a worker |
| 35 |
includes a reference to a member of the occupational pension scheme in |
| |
| |
(4) | A reference to the terms of a person’s work is to be construed in accordance |
| |
with Chapter 3 of Part 5. |
| |
(5) | A reference to a member of an occupational pension scheme includes a |
| 40 |
reference to a prospective member. |
| |
|
| |
|
| |
|
(6) | In relation to proceedings in England and Wales, a person has an incapacity if |
| |
| |
(a) | has not attained the age of 18, or |
| |
(b) | lacks capacity (within the meaning of the Mental Capacity Act 2005). |
| |
(7) | In relation to proceedings in Scotland, a person has an incapacity if the |
| 5 |
| |
(a) | has not attained the age of 16, or |
| |
(b) | is incapable (within the meaning of the Adults with Incapacity |
| |
| |
(8) | “Service complaint” means a complaint under section 334 of the Armed Forces |
| 10 |
Act 2006 (c. 52); and “service complaint procedures” means the procedures |
| |
prescribed by regulations under that section (except in so far as relating to |
| |
references under section 337 of that Act) |
| |
(9) | “Criminal matter” means— |
| |
(a) | an investigation into the commission of an alleged offence; |
| 15 |
(b) | a decision whether to commence criminal proceedings; |
| |
(c) | criminal proceedings. |
| |
| |
| |
Contracts and other agreements |
| 20 |
| |
(1) | A term of a contract is unenforceable against a person in so far as it constitutes, |
| |
promotes or provides for treatment of that or another person that is of a |
| |
description prohibited by this Act. |
| |
(2) | A relevant non-contractual term is unenforceable against a person in so far as |
| 25 |
it constitutes, promotes or provides for treatment of that or another person that |
| |
is of a description prohibited by this Act, in so far as this Act relates to |
| |
| |
(3) | A relevant non-contractual term is a term which— |
| |
(a) | is a term of an agreement that is not a contract, and |
| 30 |
(b) | relates to the provision of an employment service within section |
| |
56(2)(a) to (e) or to the provision under a group insurance arrangement |
| |
of facilities by way of insurance. |
| |
(4) | A reference in subsection (1) or (2) to treatment of a description prohibited by |
| |
this Act does not include— |
| 35 |
(a) | a reference to the inclusion of a term in a contract referred to in section |
| |
| |
(b) | a reference to the failure to include a term in a contract as referred to in |
| |
| |
(5) | Subsection (4) does not affect the application of section 147(2) to this section. |
| 40 |
|
| |
|
| |
|
142 | Removal or modification of unenforceable terms |
| |
(1) | A county court or the sheriff may, on an application by a person who has an |
| |
interest in a contract, or other agreement, which includes a term that is |
| |
unenforceable as a result of section 141, make an order for the term to be |
| |
| 5 |
(2) | An order under this section must not be made unless every person who would |
| |
| |
(a) | has been given notice of the application (except where notice is |
| |
dispensed with in accordance with rules of court), and |
| |
(b) | has been afforded an opportunity to make representations to the |
| 10 |
| |
(3) | An order under this section may include provision in respect of a period before |
| |
| |
| |
(1) | A term of a contract is unenforceable by a person in whose favour it would |
| 15 |
operate in so far as it purports to exclude or limit a provision of or made under |
| |
| |
(2) | A relevant non-contractual term (as defined by section 141) is unenforceable by |
| |
a person in whose favour it would operate in so far as it purports to exclude or |
| |
limit a provision of or made under this Act, in so far as the provision relates to |
| 20 |
| |
(3) | This section does not apply to a contract which settles a claim within section |
| |
| |
(4) | This section does not apply to a contract which settles a complaint within |
| |
section 119 if the contract— |
| 25 |
(a) | is made with the assistance of a conciliation officer, or |
| |
(b) | is a qualifying compromise contract. |
| |
(5) | A contract within subsection (4) includes a contract which settles a complaint |
| |
relating to a breach of an equality clause or rule or of a non-discrimination rule. |
| |
(6) | A contract within subsection (4) includes an agreement by the parties to a |
| 30 |
dispute to submit the dispute to arbitration if— |
| |
(a) | the dispute is covered by a scheme having effect by virtue of an order |
| |
under section 212A of the Trade Union and Labour Relations |
| |
(Consolidation) Act 1992, and |
| |
(b) | the agreement is to submit the dispute to arbitration in accordance with |
| 35 |
| |
Collective agreements and rules of undertakings |
| |
144 | Void and unenforceable terms |
| |
(1) | A term of a collective agreement is void in so far as it constitutes, promotes or |
| |
provides for treatment of a description prohibited by this Act. |
| 40 |
|
| |
|
| |
|
(2) | A rule of an undertaking is unenforceable against a person in so far as it |
| |
constitutes, promotes or provides for treatment of the person that is of a |
| |
description prohibited by this Act. |
| |
145 | Declaration in respect of void term, etc. |
| |
(1) | A qualifying person (P) may make a complaint to an employment tribunal that |
| 5 |
a term is void, or a rule is unenforceable, as a result of section 144. |
| |
(2) | But subsection (1) applies only if— |
| |
(a) | the term or rule may in the future have effect in relation to P, and |
| |
(b) | where the complaint alleges that the term or rule provides for treatment |
| |
of a description prohibited by this Act, P may in the future be subjected |
| 10 |
to treatment that would (if P were subjected to it in present |
| |
circumstances) be of that description. |
| |
(3) | If the tribunal finds that the complaint is well-founded, it must make an order |
| |
declaring that the term is void or the rule is unenforceable. |
| |
(4) | An order under this section may include provision in respect of a period before |
| 15 |
| |
(5) | In the case of a complaint about a term of a collective agreement, where the |
| |
term is one made by or on behalf of a person of a description specified in the |
| |
first column of the table, a qualifying person is a person of a description |
| |
specified in the second column. |
| 20 |
| Description of person who |
| | | | | made collective agreement |
| | | | | | A person who is, or is seeking to be, |
| | | | | an employee of that employer |
| | | | Organisation of employers |
| A person who is, or is seeking to be, |
| | 25 | | | an employee of an employer who is a |
| | | | | member of that organisation |
| | | | Association of organisations |
| A person who is, or is seeking to be, |
| | | | | an employee of an employer who is a |
| | | | | member of an organisation in that |
| | 30 | | | | | |
|
(6) | In the case of a complaint about a rule of an undertaking, where the rule is one |
| |
made by or on behalf of a person of a description specified in the first column |
| |
of the table, a qualifying person is a person of a description specified in the |
| |
| 35 |
| Description of person who |
| | | | | | | | | | | A person who is, or is seeking to be, |
| | | | | an employee of that employer |
| | |
|
|
| |
|
| |
|
| Description of person who |
| | | | | | | | | | | A person who is, or is seeking to be, a |
| | | | | member of the organisation or body |
| | | | | A person on whom the body has |
| | 5 | | | conferred a relevant qualification |
| | | | | A person seeking conferment by the |
| | | | | body of a relevant qualification |
| | |
|
|
| |
146 | Meaning of “qualifying compromise contract” |
| 10 |
(1) | This section applies for the purposes of this Part. |
| |
(2) | A qualifying compromise contract is a contract in relation to which each of the |
| |
conditions in subsection (3) is met. |
| |
(3) | Those conditions are that— |
| |
(a) | the contract is in writing, |
| 15 |
(b) | the contract relates to the particular complaint, |
| |
(c) | the complainant has, before entering into the contract, received advice |
| |
from an independent adviser about its terms and effect (including, in |
| |
particular, its effect on the complainant’s ability to pursue the |
| |
complaint before an employment tribunal), |
| 20 |
(d) | on the date of the giving of the advice, there is in force a contract of |
| |
insurance, or an indemnity provided for members of a profession or |
| |
professional body, covering the risk of a claim by the complainant in |
| |
respect of loss arising from the advice, |
| |
(e) | the contract identifies the adviser, and |
| 25 |
(f) | the contract states that the conditions in paragraphs (c) and (d) are met. |
| |
(4) | Each of the following is an independent adviser— |
| |
| |
(b) | an officer, official, employee or member of an independent trade union |
| |
certified in writing by the trade union as competent to give advice and |
| 30 |
as authorised to do so on its behalf; |
| |
(c) | a worker at an advice centre (whether as an employee or a volunteer) |
| |
certified in writing by the centre as competent to give advice and as |
| |
authorised to do so on its behalf; |
| |
(d) | a person of such description as may be specified by order. |
| 35 |
(5) | Despite subsection (4), none of the following is an independent adviser in |
| |
relation to a qualifying compromise contract— |
| |
(a) | a person who is a party to the contract or the complaint; |
| |
(b) | a person who is connected to a person within paragraph (a); |
| |
(c) | a person who is employed by a person within paragraph (a) or (b); |
| 40 |
(d) | a person who is acting for a person within paragraph (a) or (b) in |
| |
relation to the contract or the complaint; |
| |
|
| |
|
| |
|
(e) | a person within subsection (4)(b) or (c), if the trade union or advice |
| |
centre is a person within paragraph (a) or (b); |
| |
(f) | a person within subsection (4)(c) to whom the complainant makes a |
| |
| |
(6) | A “qualified lawyer”, for the purposes of subsection (4)(a), is— |
| 5 |
(a) | in relation to England and Wales, a person who, for the purposes of the |
| |
Legal Services Act 2007, is an authorised person in relation to an |
| |
activity which constitutes the exercise of a right of audience or the |
| |
| |
(b) | in relation to Scotland, an advocate (whether in practice as such or |
| 10 |
employed to give legal advice) or a solicitor who holds a practising |
| |
| |
(7) | “Independent trade union” has the meaning given in section 5 of the Trade |
| |
Union and Labour Relations (Consolidation) Act 1992 (c. 52). |
| |
(8) | Two persons are connected for the purposes of subsection (5) if— |
| 15 |
(a) | one is a company of which the other (directly or indirectly) has control, |
| |
| |
(b) | both are companies of which a third person (directly or indirectly) has |
| |
| |
(9) | Two persons are also connected for the purposes of subsection (5) in so far as a |
| 20 |
connection between them gives rise to a conflict of interest in relation to the |
| |
contract or the complaint. |
| |
| |
(1) | This section applies for the purposes of this Part. |
| |
(2) | A reference to treatment of a description prohibited by this Act does not |
| 25 |
include treatment in so far as it is treatment that would contravene— |
| |
(a) | Part 1 (public sector duty regarding socio-economic inequalities), or |
| |
(b) | Chapter 1 of Part 11 (public sector equality duty). |
| |
(3) | “Group insurance arrangement” means an arrangement between an employer |
| |
and another person for the provision by that other person of facilities by way |
| 30 |
of insurance to the employer’s employees (or a class of those employees). |
| |
(4) | “Collective agreement” has the meaning given in section 178 of the Trade |
| |
Union and Labour Relations (Consolidation) Act 1992. |
| |
(5) | A rule of an undertaking is a rule within subsection (6) or (7). |
| |
(6) | A rule within this subsection is a rule made by a trade organisation or a |
| 35 |
qualifications body for application to— |
| |
(a) | its members or prospective members, |
| |
(b) | persons on whom it has conferred a relevant qualification, or |
| |
(c) | persons seeking conferment by it of a relevant qualification. |
| |
(7) | A rule within this subsection is a rule made by an employer for application to— |
| 40 |
| |
(b) | persons who apply for employment, or |
| |
(c) | persons the employer considers for employment. |
| |
|
| |
|
| |
|
(8) | “Trade organisation”, “qualifications body” and “relevant qualification” each |
| |
have the meaning given in Part 5 (work). |
| |
| |
| |
| 5 |
Public sector equality duty |
| |
148 | Public sector equality duty |
| |
(1) | A public authority must, in the exercise of its functions, have due regard to the |
| |
| |
(a) | eliminate discrimination, harassment, victimisation and any other |
| 10 |
conduct that is prohibited by or under this Act; |
| |
(b) | advance equality of opportunity between persons who share a relevant |
| |
protected characteristic and persons who do not share it; |
| |
(c) | foster good relations between persons who share a relevant protected |
| |
characteristic and persons who do not share it. |
| 15 |
(2) | A person who is not a public authority but who exercises public functions |
| |
must, in the exercise of those functions, have due regard to the matters |
| |
mentioned in subsection (1). |
| |
(3) | Having due regard to the need to advance equality of opportunity between |
| |
persons who share a relevant protected characteristic and persons who do not |
| 20 |
share it involves having due regard, in particular, to the need to— |
| |
(a) | remove or minimise disadvantages suffered by persons who share a |
| |
relevant protected characteristic that are connected to that |
| |
| |
(b) | meet the needs of persons who share a relevant protected characteristic |
| 25 |
that are different from the needs of persons who do not share it; |
| |
(c) | encourage persons who share a relevant protected characteristic to |
| |
participate in public life or in any other activity in which participation |
| |
by such persons is disproportionately low. |
| |
(4) | Having due regard to the need to foster good relations between persons who |
| 30 |
share a relevant protected characteristic and persons who do not share it |
| |
involves having due regard, in particular, to the need to— |
| |
(a) | tackle prejudice, and |
| |
(b) | promote understanding. |
| |
(5) | Compliance with the duties in this section may involve treating some persons |
| 35 |
more favourably than others; but that is not to be taken as permitting conduct |
| |
that would otherwise be prohibited by or under this Act. |
| |
(6) | The relevant protected characteristics are— |
| |
| |
| 40 |
| |
| |
| |
|
| |
|