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Clause 71: Sex discrimination in relation to contractual pay

Effect

260.     This clause deals with sex discrimination in relation to contractual pay in circumstances where a sex equality clause would not operate. This could be because there is no colleague doing equal work with whom a claimant can compare his or her pay or other terms. The clause enables a person who is treated less favourably than others by being paid less because of the person’s sex or a combination of two protected characteristics including sex to pursue a claim for direct or dual discrimination in these circumstances.

Background

261.     This clause is a new provision designed to allow claims to be brought where a person can show evidence of direct sex discrimination or dual discrimination (where sex is one of the protected characteristics in the combination) in relation to contractual pay but is unable to gain the benefit of a sex equality clause due to the absence of a comparator doing equal work.

Example

  • An employer tells a female employee "I would pay you more if you were a man" or tells a black female employee "I would pay you more if you were a white man". In the absence of any male comparator the woman cannot bring a claim for breach of an equality clause but she can bring a claim of direct sex discrimination or dual discrimination (combining sex and race) against the employer.

Clause 72: Relevant types of work

Effect

262.     This clause sets out the types of work that are covered by the provisions for pregnancy and maternity equality set out in the clauses which follow.

Background

263.     This clause replaces various provisions in the Equal Pay Act 1970, which set out who is covered by the pregnancy and maternity equality requirements.

Clause 73: Maternity equality clause

Effect

264.     This clause requires that a woman’s contract must be read as including a maternity equality clause. Clause 74 sets out how a maternity equality clause modifies a woman’s pay. No comparator is required in these cases.

265.     A maternity equality clause is capable of affecting the terms of an occupational pension scheme but only in the way a maternity equality rule (as described in clause 75 would). This ensures that the provisions relating to pregnancy and maternity equality of terms at work and the provision governing pension schemes in clause 75 operate effectively together.

Background

266.     This clause reflects provisions of the Equal Pay Act 1970.

Clause 74: Maternity equality clause: pay

Effect

267.     This clause sets out how and when a maternity equality clause affects a woman’s pay while she is on maternity leave.

268.     Firstly, the maternity equality clause is designed to ensure that any pay increase a woman receives (or would have received if she had not been on maternity leave) is taken into account in the calculation of her maternity-related pay where her terms do not already provide for this.

269.     Secondly, a maternity equality clause will operate to ensure that pay, including any bonus, is paid to the woman at the time she would have received it if she had not been on maternity leave.

270.     Thirdly, a maternity equality clause will provide for a woman’s pay on her return to work following maternity leave to take account of any pay increase which she would have received if she had not been on statutory maternity leave.

Background

271.     This clause is designed to replicate the effect of provisions in the Equal Pay Act 1970.

Examples

  • Early in her maternity leave, a woman receiving maternity-related pay becomes entitled to an increase of pay. If her terms of employment do not already provide for the increase to be reflected in her maternity-related pay, the employer must recalculate her maternity pay to take account of the increment.

  • A woman becomes entitled to a contractual bonus for work she undertook before she went on maternity leave. The employer cannot delay payment of the bonus and must pay it to her when it would have been paid had she not been on maternity leave.

Clause 75: Maternity equality rule

Effect

272.     This clause introduces a maternity equality rule into all occupational pension schemes.

273.     The effect of the rule is that any period when woman is on maternity leave should be treated as time when she is not, in particular in relation to any rule of an occupational pension scheme which can be applied in respect of:

  • scheme membership,

  • accrual of scheme rights, and

  • determination of benefits.

274.     The clause makes similar provision in relation to any discretion under scheme rules which can be exercised in a way that treats a period of maternity leave differently from time when a woman is not on maternity leave.

275.     The woman’s contributions to the scheme during maternity leave need be determined only by reference to the amount she is paid during maternity leave.

276.     The provisions of the clause apply only to women on unpaid ordinary maternity leave where the expected week of confinement began on or after 6th April 2003.

277.     The provisions of the clause apply only to a woman on unpaid additional maternity leave where the expected week of confinement began on or after 5th October 2008 and they do not apply to the accrual of scheme rights.

278.     Where there has been a breach of a term modified by a maternity equality rule, proceedings may be brought against the person responsible for the breach under Part 9.

Background

279.     This clause replaces the current provisions on “unfair maternity provisions” in paragraph 5 of Schedule 5 to the Social Security Act 1989 and replicates aspects of Regulations 9 and 18A of the Maternity and Parental Leave etc Regulations 1999.

Examples

  • A woman who is on maternity leave will be entitled to continuing membership of the scheme throughout the period of maternity leave whether or not she is paid.

  • A woman who is paid whilst on maternity leave will be entitled to accrue rights in a scheme as though she were paid her usual salary but she will only be required to make contributions based on her actual pay.

Clause 76: Exclusion of pregnancy and maternity discrimination provisions

Effect

280.     This clause provides that the pregnancy and maternity discrimination provisions of the Bill do not apply where a maternity clause or rule operates.

281.     The maternity discrimination provisions prohibit discrimination in relation to non-contractual pay and benefits such as promotion, transfer and training and in relation to offers of employment or appointment.

282.     The maternity equality clause provisions operate only in relation to terms of a contract of employment, the terms of appointment to a personal or public office and the terms of service of members of the armed forces and do so by including an equality clause to modify terms governing maternity-related pay.

Background

283.     This provision explains the relationship between the two sets of provisions and is intended to ensure that they provide seamless protection against pregnancy and maternity-related inequality.

Example

  • A woman who is line for promotion tells her employer that she is pregnant. The employer tells the woman he will not promote her because she is likely to be absent on maternity leave during a very busy period. This will be direct pregnancy discrimination.

Clause 77: Discussions with colleagues

Effect

284.     This clause is designed to protect people who discuss their pay with colleagues (as defined in clause 79) with a view to finding out if differences exist that are related to a protected characteristic. Any action taken against them by the employer as a result of doing so is treated as victimisation, as defined in clause 27, as applied in the clauses listed in the table.

285.     Terms of employment or appointment that prevent or restrict people from disclosing their pay to their colleagues are made unenforceable to the extent that they would prevent or restrict such a discussion.

Background

286.     This clause is new. It is intended to ensure that there is greater transparency and dialogue within workplaces about pay.

Examples

  • A female employee thinks she is underpaid compared with a male colleague. She asks him what he is paid, and he tells her. The employer takes disciplinary action against the man as a result. The man can bring a claim for victimisation against the employer for disciplining him.

  • A female employee discloses her pay to one of her employer’s competitors in breach of a confidentiality clause in her contract. The employer could take action against her in relation to that breach.

Clause 78: Gender pay gap information

Effect

287.     This clause enables a Minister of the Crown to make regulations requiring private and voluntary sector employers with at least 250 employees in Great Britain to publish information about the differences in pay between their male and female employees. The regulations may specify, among other things, the form and timing of the publication, which will be no more frequently than annually. The regulations may also specify penalties for non-compliance. Employers who do not comply with the publication requirements could face civil enforcement procedures or be liable for a criminal offence, punishable by a fine of up to £5,000.

Background

288.     This is a new provision. The Government wants large private and voluntary sector employers in Great Britain to publish information on what they pay their male and female employees, so that their gender pay gap (the size of the difference between men and women’s pay expressed as a percentage) is in the public domain.

289.     The Government’s aim is for employers regularly to publish such information on a voluntary basis. To give voluntary arrangements time to work, the Government does not intend to make regulations under this power before April 2013. The power would then be used only if sufficient progress on reporting had not been made by that time.

Clause 79: Colleagues

Effect

290.     This clause sets out the circumstances in which employees and others are taken to be colleagues for the purposes of Chapter 3. A person who claims the benefit of a sex equality clause or sex equality rule must be able to show their work is equal to that of a colleague. The application of Article 141 of the Treaty of Rome, which has direct effect, will ensure that existing case law on the breadth of possible comparisons is carried forward, so that, for example, in relevant circumstances the concept of colleagues will include former colleagues.

291.     If two persons share the same employer and work at the same establishment, they are colleagues.

292.     If two persons work at different establishments but share the same employer and common terms and conditions of employment apply, they are colleagues.

293.     A person can also be a colleague of another in either of the above circumstances if one is employed by a company associated with the other’s employer. The clause defines when employers are taken to be associated.

294.     A person holding a personal or public office is the colleague of another person holding a personal or public office if the same person is responsible for paying both of them.

295.     A person holding the office of constable is treated for the purposes of Chapter 3 as holding a personal office for the purpose of determining who can be that person’s colleague.

296.     The clause also defines when staff of the Houses of Parliament are taken to be colleagues.

Background

297.     These provisions generally reflect the effect of provisions in current legislation.

Examples

  • A woman is employed by a company at a factory. A man works for the same company at another factory. Common terms of employment apply at both establishments. The woman and man are colleagues.

Clause 80: Interpretation and exceptions

Effect

298.     This clause explains the meaning of terms used in Chapter 3. It also gives effect to Schedule 7 which sets out exceptions to the equality of terms provisions.

Chapter 4: Supplementary

Clause 81: Ships and hovercraft

Effect

299.     This clause provides that the employment provisions in Part 5 will apply to seafarers and the crew of hovercraft only in the way set out in regulations made by a Minister of the Crown.

Background

300.     The Bill is silent on the territorial application of the employment provisions. While this approach is acceptable for most workers, who at any given time are within either the territory of United Kingdom or some other territory, seafarers work on ships that may be constantly moving between waters under the jurisdiction of different States. This clause will allow the Minister to say to which seafarers on which ships, and to which crew on which hovercraft, the employment provisions apply in accordance with international law and custom and the global practices of the shipping industry. The Minister may make provision with regard to ships outside Great Britain.

301.     This clause replaces provisions concerning the territorial application and the pay of seafarers in current legislation.

Clause 82: Offshore work

Effect

302.     This clause contains a power to make an Order in Council in relation to work on board offshore installations. The power may be used to apply Part 5 (with or without modification) to those working on such installations. The power may also be used in relation to any corresponding Northern Ireland legislation (with or without modification).

Background

303.     This clause will enable protection to be extended to workers on offshore installations, such as oil and gas rigs and renewable energy installations (generally wind farms), to reflect the extent of current discrimination legislation.

Example

  • Offshore workers are typically workers (either employees, contract workers, partners, members of an LLP, or personal or public office holders) on oil and gas rigs located in the sea within the area of the United Kingdom Continental Shelf (UKCS), and on renewable energy installations (generally wind farms) within the part of the UKCS known as the Renewable Energy Zone.

Clause 83: Interpretation and exceptions

Effect

304.     This clause explains the meaning of various terms used in Part 5 of the Bill. In particular, it defines what is meant by “employment” and provides that people serving in the armed forces and people who work for the Crown and in the Houses of Commons and Lords are to be regarded as employed for the purposes of this Part of the Bill.

PART 6: EDUCATION

Chapter 1: Schools

Clause 84: Application of this Chapter

Effect

305.     This clause provides that this Chapter of the Bill, which prohibits discrimination, harassment and victimisation in the field of education in schools, does not apply to discrimination or harassment of people in those circumstances because of age, marriage and civil partnership or pregnancy and maternity.

Background

306.     This replicates the position in current legislation.

Examples

  • It is not unlawful discrimination for a school to organise a trip for pupils in one year group, but not for pupils in other years.

  • It is not unlawful discrimination for a school to allow older pupils to have privileges for which younger pupils are not eligible, such as more choice of uniform or the right to leave school during the lunch period.

Clause 85: Pupils: admission and treatment, etc.

Effect

307.     This clause makes it unlawful for the responsible body of a school to discriminate against, harass or victimise a pupil or prospective pupil in relation to the terms on which it offers him or her admission, by not admitting him or her, or in the way it treats the pupil once admitted. The responsible body for a maintained school is the local authority or the governing body, and for an independent educational institution or a non-maintained special school is the proprietor.

308.     It also imposes on the responsible body of a school the duty to make reasonable adjustments for disabled pupils and prospective disabled pupils.

309.     However, the prohibition on harassment of pupils or prospective pupils does not cover gender reassignment, sexual orientation or religion or belief.

Background

310.     This clause is primarily designed to replicate the effect of provisions in current legislation applying to schools. In addition, it extends protection from discrimination to transsexual pupils.

Examples

  • A school refuses to let a gay pupil become a prefect because of his sexual orientation. This would be direct discrimination.

  • A selective school imposes a higher standard for admission to applicants from an ethnic minority background, or to girls. This would be direct discrimination.

  • A pupil alleges, in good faith, that his school has discriminated against him because of his religion (for example claiming that he is given worse marks than other pupils because he is Jewish), so the school punishes him by making him do a detention. This would be victimisation.

  • A teacher ridicules a particular pupil in class because of his disability, or makes comments which have the result of making the girls in the class feel embarrassed and humiliated. This would be harassment.

Clause 86: Victimisation of pupils, etc. for the conduct of parents, etc.

Effect

311.     This clause protects children in schools from being victimised as a result of a protected act (such as making or supporting a complaint of discrimination) done by their parent or sibling. The aim is to prevent parents being discouraged from raising an issue of discrimination with a school because of worry that their child may suffer retaliation as a result.

312.     Where a parent or sibling maliciously makes or supports an untrue complaint, the child is still protected from victimisation, as long as the child has acted in good faith. But, in common with the general approach to victimisation, where a child has acted in bad faith, he or she is not protected, even where a parent or sibling makes or supports an untrue complaint in good faith.

Background

313.     This clause is designed to replicate the effect of provisions in the Disability Discrimination Act 1995 and extend the protection to cover all characteristics protected under this Chapter.

Examples

  • The parent of a pupil complains to the school that her daughter is suffering sex discrimination by not being allowed to participate in a metalwork class. The daughter is protected from being treated less favourably by the school in any way because of this complaint.

  • A pupil brings a case against his school claiming that he has suffered discrimination by a member of staff because of his sexual orientation. The pupil’s younger brother, at the same school, is protected against any less favourable treatment by the school because of this case, even if it is later found that the older brother was not acting in good faith.

Clause 87: Application of certain powers under Education Act 1996

Effect

314.     This clause enables the Secretary of State to give directions, using powers under the Education Act 1996, to require a maintained school or a non-maintained special school to comply with its duties under clause 85. It enables the Secretary of State to require a school to stop a discriminatory practice or policy even if no complaint has been brought by an individual pupil or prospective pupil.

Background

315.     Sections 496 and 497 of the Education Act 1996 empower the Secretary of State to give directions to local education authorities and to governing bodies of maintained schools to prevent them exercising their functions under the Education Acts unreasonably, or to require them to perform statutory duties where they are not doing so. This power has already been extended to require compliance with the law on sex discrimination, and this clause extends those powers to all the protected characteristics covered by clause 85.

Example

  • The governing body of a school refuses as a matter of policy to let disabled pupils participate in school trips because of the extra risk management required. The Secretary of State could direct the governing body to change its policy so as to make reasonable adjustments to enable disabled pupils to participate.

Clause 88: Disabled pupils: accessibility

Effect

316.     This clause introduces Schedule 10 which requires local authorities and schools to prepare and implement accessibility strategies and plans. These will increase disabled pupils’ access to the curriculum and improve the physical environment and the provision of information. They are explained in more detail in the notes to that Schedule.

Clause 89: Interpretation and exceptions

Effect

317.     This clause explains what is meant by terms used in this Chapter, such as “school” and “pupil”. It also makes it clear that the prohibitions in the Chapter do not apply to anything done in relation to the content of the school curriculum. This ensures that the Bill does not inhibit the ability of schools to include a full range of issues, ideas and materials in their syllabus and to expose pupils to thoughts and ideas of all kinds. The way in which the curriculum is taught is, however, covered by the reference to education in clause 85(2)(a), so as to ensure issues are taught in a way which does not subject pupils to discrimination. This clause also gives effect to Schedule 11 which provides some exceptions to the provisions in this Chapter.

Background

318.     This clause is designed to replicate the effect of an exception relating to discrimination because of religion or belief in the Equality Act 2006, and extends it to other protected characteristics.

Examples

  • A school curriculum includes teaching of evolution in science lessons. This would not be religious discrimination against a pupil whose religious beliefs include creationism.

  • A school curriculum includes The Taming of the Shrew on the syllabus. This would not be discrimination against a girl.

Chapter 2: Further and higher education

Clause 90: Application of this Chapter

Effect

319.     This clause provides that this Chapter of the Bill, which prohibits discrimination, harassment and victimisation in the field of education in institutions providing further and higher education, does not make it unlawful to discriminate against or harass people in those circumstances because of marriage or civil partnership status.

Background

320.     This clause is designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

 
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Prepared: 4 December 2009