Equality Bill

House of Lords

Session 2009 - 10
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Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous
88

138
Interest
(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
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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.
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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.
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(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
section; accordingly—
(a)
a reference to a claim within section 113(1) includes a reference to a
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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
(6)
“Court” means—
(a)
in relation to proceedings in England and Wales, a county court;
(b)
in relation to proceedings in Scotland, the sheriff.
140
Interpretation, etc.
(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
question.
(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
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reference to a prospective member.

Equality Bill
Part 10 — Contracts, etc.
89

(6)
In relation to proceedings in England and Wales, a person has an incapacity if
the person—
(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
person—
(a)
has not attained the age of 16, or
(b)
is incapable (within the meaning of the Adults with Incapacity
(Scotland) Act 2000).
(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;
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(b)
a decision whether to commence criminal proceedings;
(c)
criminal proceedings.
Part 10
Contracts, etc.
Contracts and other agreements
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141
Unenforceable terms
(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
disability.
(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—
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(a)
a reference to the inclusion of a term in a contract referred to in section
70(2)(a) or 76(2), or
(b)
a reference to the failure to include a term in a contract as referred to in
section 70(2)(b).
(5)
Subsection (4) does not affect the application of section 147(2) to this section.
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Equality Bill
Part 10 — Contracts, etc.
90

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
removed or modified.
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(2)
An order under this section must not be made unless every person who would
be affected by it—
(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
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county court or sheriff.
(3)
An order under this section may include provision in respect of a period before
the making of the order.
143
Contracting out
(1)
A term of a contract is unenforceable by a person in whose favour it would
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operate in so far as it purports to exclude or limit a provision of or made under
this Act.
(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
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disability.
(3)
This section does not apply to a contract which settles a claim within section
113.
(4)
This section does not apply to a contract which settles a complaint within
section 119 if the contract—
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(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
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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
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the scheme.
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.
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Equality Bill
Part 10 — Contracts, etc.
91

(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
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the making of the order.
(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.
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Description of person who
Qualifying person

made collective agreement

Employer
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,

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an employee of an employer who is a

member of that organisation

Association of organisations
A person who is, or is seeking to be,

of employers
an employee of an employer who is a

member of an organisation in that

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association

(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
second column.
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Description of person who
Qualifying person

made rule of undertaking

Employer
A person who is, or is seeking to be,

an employee of that employer

Equality Bill
Part 10 — Contracts, etc.
92

Description of person who
Qualifying person

made rule of undertaking

Trade organisation or
A person who is, or is seeking to be, a

qualifications body
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

Supplementary
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,
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(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),
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(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
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(f)
the contract states that the conditions in paragraphs (c) and (d) are met.
(4)
Each of the following is an independent adviser—
(a)
a qualified lawyer;
(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
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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.
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(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);
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(d)
a person who is acting for a person within paragraph (a) or (b) in
relation to the contract or the complaint;

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Part 10 — Contracts, etc.
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(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
payment for the advice.
(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
conduct of litigation;
(b)
in relation to Scotland, an advocate (whether in practice as such or
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employed to give legal advice) or a solicitor who holds a practising
certificate.
(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—
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(a)
one is a company of which the other (directly or indirectly) has control,
or
(b)
both are companies of which a third person (directly or indirectly) has
control.
(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.
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Interpretation
(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
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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
(a)
employees,
(b)
persons who apply for employment, or
(c)
persons the employer considers for employment.

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty
94

(8)
“Trade organisation”, “qualifications body” and “relevant qualification” each
have the meaning given in Part 5 (work).
Part 11
Advancement of equality
Chapter 1
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
need to—
(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.
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(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
characteristic;
(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
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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—
age;
disability;
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gender reassignment;
pregnancy and maternity;
race;