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Background

374.     This clause incorporates some of the elements in the “Aiding unlawful acts” provisions in current discrimination legislation. It takes a more direct approach and unlike the existing provisions it is not necessary to show that the employee or agent knew that the act was unlawful.

Example

  • A factory worker racially harasses her colleague. The factory owner would be liable for the worker’s actions, but is able to show that he took all reasonable steps to stop the harassment. The colleague can still bring a claim against the factory worker in an employment tribunal.

  • A principal instructs an agent to sell products on her behalf. The agent discriminates against a disabled customer. Both the principal and the agent are liable, but the courts are able to determine that evidence provided by the principal indicate the authority given to the agent did not extend to carrying out an authorised act in a discriminatory manner. The disabled customer can still bring a claim against the agent.

Clause 110: Instructing, causing or inducing discrimination

Effect

375.     This clause makes it unlawful for a person to instruct, cause or induce someone to discriminate against, harass or victimise another person, or to attempt to do so.

376.     It provides a remedy for both the recipient of the instruction and the intended victim, whether or not the instruction is carried out, provided the recipient or intended victim suffers a detriment as a result.

377.     However, the clause only applies where the person giving the instruction is in a relationship with the recipient of the instruction in which discrimination, harassment or victimisation is prohibited.

378.     The Equality and Human Rights Commission can enforce this clause using its statutory powers under the Equality Act 2006. Equally, both the recipient of the instruction and the intended victim can bring individual claims for breach of this clause against the person giving the instructions so long as they have suffered a detriment as a result. A claim brought by the recipient of the instruction will be dealt with in the same forum (employment tribunal or county courts) as a direct claim for discrimination, harassment or victimisation against the person giving the instruction would be. A claim brought by the intended victim against the person giving the instruction will be dealt with in the same forum as a claim for discrimination, harassment or victimisation against the person carrying out the instruction would be.

Background

379.     This clause replaces provisions in current legislation in relation to race, sex, gender reassignment, pregnancy and maternity, age (within the workplace) disability (within the workplace), religion or belief (outside the workplace) and sexual orientation (outside the workplace). It extends protection to all protected characteristics in all areas covered by the Bill and allows the Equality and Human Rights Commission to bring enforcement proceedings in relation to any action in breach of the clause. (Previously the Equality and Human Rights Commission’s enforcement powers were not uniform even between the strands and fields where there were provisions on instructions to discriminate). The provision expressly allowing persons instructed to bring proceedings is new (other than in relation to age for the workplace where such provision already exists), and is designed to codify the current position in common law (see Weathersfield v Sargent [1999] IRLR 94). The provision expressly allowing the intended victim to bring proceedings, even where the instruction is not carried out, is also new and is designed to ensure greater clarity about the protection under current legislation.

Example

  • A GP instructs his receptionist not to register anyone with an Asian name. The receptionist would have a claim against the GP if subjected to a detriment for not doing so. A potential patient would also have a claim against the GP if she discovered the instruction had been given and was put off applying to register. The receptionist’s claim against the GP would be brought before the employment tribunal as it relates to employment, while the potential patient’s claim would be brought in the county court as it relates to services.

Clause 111: Aiding contraventions

Effect

380.     This clause makes it unlawful for a person to help someone carry out an act which he or she knows is unlawful under the Bill. However, this is not unlawful if the person giving assistance has been told that the act is lawful and he or she reasonably believes this to be true.

381.     It makes it an offence, punishable by a fine of (currently) up to £5,000, if a false statement is knowingly or recklessly made about the lawfulness of doing something under the Bill.

382.     For the purposes of enforcement, breaches of the prohibition on aiding contraventions are dealt with under the same procedures in the Bill as the contraventions themselves.

Background

383.     This clause is designed to replicate the effect of similar provisions in current legislation. It ensures that a person who helps another to do something which they know to be prohibited by the Bill is liable in their own right. Taken together with the provisions on “Liability of employers and principals” (clause 108), “Liability of employees and agents” (clause 109) and “Instructing, causing or inducing discrimination” (clause 110) this clause is designed to ensure that both the person carrying out an unlawful act and any person on whose behalf or with whose help they were acting can be held to account where appropriate.

Example

  • On finding out that a new tenant is gay, a landlord discriminates against him by refusing him access to certain facilities, claiming that they are not part of the tenancy agreement. Another tenant knows this to be false but joins in with the landlord in refusing the new tenant access to the facilities in question. The new tenant can bring a discrimination claim against both the landlord and the tenant who helped him.

PART 9: ENFORCEMENT

Chapter 1: Introductory

Clause 112: Proceedings

Effect

384.     This clause applies the provisions of Part 9 to claims made under the Bill. These claims must be brought either in a county court (sheriff court in Scotland) or in an employment tribunal. Clauses 113 and 119 set out which claims should be brought in the civil courts and which in tribunals.

385.     This clause does not affect the enforcement powers of the Equality and Human Rights Commission which are in Part 1 of the Equality Act 2006. Nor does it prevent judicial review proceedings (or the equivalent in Scotland) or certain immigration proceedings related to compliance with the Bill’s provisions.

Background

386.     This provision replaces similar provisions in the current legislation.

Chapter 2: Civil courts

Clause 113: Jurisdiction

Effect

387.     This clause sets out what types of claims under the Bill a county court or (in Scotland) the sheriff court has jurisdiction to hear. These are claims related to provision of services, the exercise of public functions, disposal and management of premises, education (other than in relation to disability), and associations.

388.     There is a presumption that a judge or sheriff will appoint an assessor to assist the court when hearing discrimination cases. However, an assessor need not be appointed where there are good reasons not to (for example, after an assessment of the judge’s own level of experience, the nature of the case and the wishes of the claimant).

Background

389.     This clause is designed to replicate the effect of provisions in current legislation. However, for the first time the Bill enables disability discrimination in schools cases in Scotland to be heard in the Additional Support Needs Tribunals (Scotland) rather than the sheriff courts, where they are heard at present.

390.     Currently, two assessors sit with judges in cases involving race and sex discrimination only. This clause extends the requirement to have assessors for cases of discrimination based on any protected characteristic, such as sexual orientation or religion or belief, but reduces the number of assessors used in each case to one.

Examples

  • A woman has joined a golf club but, because she is a woman, she is allowed to play golf only on Tuesday afternoons and is not allowed access to the club bar. She could bring a discrimination claim in the county or (if the golf course is in Scotland) sheriff court.

  • A gay man applies for residential housing in a local authority area, but is told that he can choose from only three housing blocks because all homosexual people are housed together. He could bring a discrimination claim in the county or sheriff court.

Clause 114: Immigration cases

Effect

391.     This clause sets out which claims under the Bill are outside the jurisdiction of the county or sheriff courts because they are being dealt with in immigration proceedings. These are claims in relation to decisions on whether a person may enter or remain in the UK and claims where the question of whether there has been a breach of Part 3 of the Bill (dealing with services and public functions) has either been raised in immigration proceedings and rejected, or could be raised on appeal.

Background

392.     This provision is designed to replicate the effect of provisions in current legislation.

Clause 115: Education cases

Effect

393.     This clause sets out which education-related claims under the Bill are outside the jurisdiction of the county and sheriff courts. These are claims about discrimination because of disability in schools which should be brought instead in specialist tribunals (there is a separate tribunal for England, for Wales and for Scotland).

Background

394.     The position for England and Wales remains unchanged. As noted in relation to clause 113 the Bill for the first time enables disability discrimination in schools cases in Scotland to be heard in the Additional Support Needs Tribunals (Scotland) rather than the sheriff courts, where they are heard at present.

Clause 116: National security

Effect

395.     A county or sheriff court may need to take various steps during proceedings in order to safeguard national security. This clause enables the Civil Procedure Rules Committee (for England and Wales) and the Sheriff Court Rules Council (for Scotland) to make rules of court to enable the court to exclude a claimant, representative or assessor from part or all of the proceedings; permit a claimant or representative who has been excluded to make a statement before the proceedings begin; and ensure that part or all of the reasons for a decision on the merits of the case are kept secret. Where the claimant or his or her representative is excluded from proceedings, a special advocate can be appointed to represent the claimant’s interests.

Background

396.     This provision is designed to replicate and extend powers in current legislation. The existing powers apply in relation to some discrimination proceedings but not to those involving sexual orientation and age. This provision extends the power so that it applies across all the protected characteristics.

Clause 117: Time limits

Effect

397.     A person must bring a claim under the Bill in the county and sheriff courts within six months of the alleged unlawful act taking place. If a person wants to make a claim after that period it is at the courts’ discretion whether they grant permission to allow this. The test applied by the courts is what is “just and equitable” in the circumstances. This test is used to decide whether to extend time limits in other types of claims such as negligence personal injury claims and is used in the current legislation.

398.     The exception to this rule is for claims which have been referred to a student complaints scheme within six months or to the Equality and Human Rights Commission for conciliation. In these instances the time limit for bringing a claim is increased to nine months. The six month period will only begin, in a claim involving a decision of an immigration body, when that body has ruled that there is a breach of Part 3 and that ruling can no longer be appealed.

399.     Where the conduct in respect of which a claim under the Bill might arise continues over a period of time, the time limit starts to run at the end of that period. Where it consists of a failure to do something, the time limit starts to run when the person decides not to do the thing in question. In the absence of evidence to the contrary, this is either when the person does something which conflicts with doing the act in question; or at the end of the time when it would have been reasonable for them to do the thing.

Background

400.     This clause is designed to replicate the effect of provisions in the current legislation, except that the provision allowing a longer time limit in respect of complaints referred to the student complaints scheme and for conciliation by the Equality and Human Rights Commission is new.

Clause 118: Remedies

Effect

401.     This clause gives powers to county and sheriff courts hearing claims under the Bill to grant any remedy that the High Court or Court of Session in Scotland can grant in proceedings in tort or in a claim for judicial review. The main remedies available are damages (including compensation for injuries to feelings), an injunction and a declaration. In cases based on indirect discrimination, if the respondent proves that he or she did not intend to treat the claimant unfavourably then the award of damages can not be considered until a court has looked at the other remedies available to it.

402.     A court cannot grant some remedies, such as an injunction, if it would prejudice a criminal investigation or proceedings.

Background

403.     This provision is designed to replicate the effect of provisions in the current legislation.

Chapter 3: Employment tribunals

Clause 119: Jurisdiction

Effect

404.     This clause sets out what types of claims under the Bill the employment tribunals have jurisdiction to hear. These are cases involving discrimination in a work context (which includes contract workers, partners, office holders and barristers and advocates). Their jurisdiction also includes cases about the terms of collective agreements (which can cover any of the terms of employment) and rules of undertakings which are unenforceable under clause 144 because they provide for treatment which is prohibited by the Bill.

405.     It also gives jurisdiction to employment tribunals to hear complaints relating to breaches of a non-discrimination rule. Jurisdiction for hearing a complaint regarding a breach of an equality clause or an equality rule is set out in clause 126. An employment tribunal can also make a ruling on an application made by a responsible person in relation to an occupational pension scheme (as defined in clause 61(4)) for a declaration about their rights and those of a worker or member or prospective member of the scheme.

Background

406.     This clause is designed to replicate the effect of provisions in the current legislation.

Examples

  • A worker is racially abused by a co-worker. She could bring a discrimination claim in the employment tribunal.

  • A gay man has applied to become a partner in a firm of accountants but because he is homosexual has not been invited for an interview despite being equally or better qualified than other candidates who were invited for an interview. He could bring a discrimination claim in the employment tribunal.

Clause 120: Jurisdiction in armed forces cases

Effect

407.     This clause establishes that, before bringing a claim under the work provisions of the Bill to an employment tribunal, a member of the armed forces must raise his or her complaint through the armed services internal complaints procedure and not withdraw that complaint. If the complainant fails properly to progress his or her internal complaint then it may, in certain circumstances, be treated as if it had been withdrawn. The internal service complaint procedures do not have to be concluded before the complainant brings a claim to an employment tribunal.

Background

408.     This clause is designed to replicate the effect of provisions in the current legislation.

Example

  • A black soldier who thinks he has been discriminated against by being passed over for promotion would have to make an internal service complaint before bringing his claim to an employment tribunal.

Clause 121: References by court to tribunal, etc.

Effect

409.     The Bill does not prevent the civil courts from considering a claim that a pension scheme operates in a discriminatory manner. This clause enables a court to strike out such a claim if it would be more convenient for an employment tribunal to deal with it, or to refer an issue relating to such a claim to an employment tribunal.

Background

410.     Employment tribunals have the specialist knowledge and procedures to handle claims relating to discrimination in the work context and this clause gives a court power to refer such issues to a tribunal. This clause reflects similar provisions in current legislation.

Example

  • An employee who is member of a pension scheme sues his employer in court alleging the employer operates the scheme in a discriminatory manner. The court decides to refer the issue to an employment tribunal and postpones the case until the tribunal’s decision.

Clause 122: Time limits

Effect

411.     This clause deals with time limits for cases in the employment tribunals. A person must bring a claim within three months of the alleged conduct taking place. The exception to that rule is a case involving an armed forces complaint, which must be brought within six months. If a person wants to make a claim after that period it is at the tribunals’ discretion whether they grant permission to allow them to do so. The test applied by the tribunals is what is “just and equitable” in the circumstances. This test is used to decide whether to extend time limits in other types of claims such as negligence personal injury claims and is used under the current legislation.

412.     Where the conduct in respect of which a claim under the Bill might arise continues over a period of time, the time limit starts to run at the end of that period. Where it consists of a failure to do something, the time limit starts to run when the person decides not to do the thing in question. In the absence of evidence to the contrary, this is either when the person does something which conflicts with doing the act in question; or at the end of the time when it would have been reasonable for them to do the thing. This clause does not apply to a breach of an equality clause or an equality rule, which is covered by clause 128 below.

Background

413.     This clause is designed to replicate the effect of provisions in current legislation.

Clause 123: Remedies: general

Effect

414.     This clause sets out the remedies available to employment tribunals hearing cases under the Bill. It does not however apply to a breach of an equality clause or an equality rule, which is dealt with in clauses 131, 132 and 133.

415.     An employment tribunal can make a declaration regarding the rights of the complainant and/or the respondent; order compensation to be paid, including damages for injury to feelings; and make an appropriate recommendation. The measure of compensation is that which applies in tort claims, for example claims of negligence, which is to put the claimant in the same position, as far as possible, as they would have been if the unlawful act had not taken place.

416.     Where a tribunal makes a recommendation it does not have to be aimed only at reducing the negative impact on the individual claimant(s) of the respondent’s actions which gave rise to the successful claim, but can be aimed at reducing that impact on the wider workforce. The recommendation must state that the respondent should take specific action within a specified period of time. A tribunal has the power in any case where a recommendation made for the benefit of the individual claimant only is not complied with, to award compensation or increase any award already made.

417.     In a case of indirect discrimination where the respondent proves that there was no intention to treat the claimant unfavourably, a tribunal cannot award damages to a claimant unless it has first considered making either a declaration or recommendation.

Background

418.     This clause is designed generally to replicate the effect of provisions in current legislation. However, under current legislation, employment tribunals can make a declaration, order compensation to be paid and make recommendations. However, currently the recommendations that they can make can only be for the benefit of the individual claimant(s). The Bill will extend the recommendations power so that employment tribunals can make recommendations which benefit persons other than the claimant.

Example

419.     A tribunal could recommend that the respondent:

  • introduces an equal opportunities policy;

  • ensures its harassment policy is more effectively implemented;

  • sets up a review panel to deal with equal opportunities and harassment/grievance procedures;

  •      re-trains staff; or

  • makes public the selection criteria used for transfer or promotion of staff.

Clause 124: Remedies: national security

Effect

420.     This clause sets out the restrictions on the types of remedies available to an employment tribunal in cases which have been designated as “national security proceedings”. National security proceedings are those where an order has been made under various provisions of the Employment Tribunals Act 1996 or regulations made under the Act.

421.     In national security proceedings a recommendation must not be made for the benefit of the respondent’s wider workforce, if the recommendation would affect anything done by the Security Service, the Secret Intelligence Service, Government Communications Headquarters or the part of the armed forces which assist the Government Communication Headquarters. In such cases the tribunal is limited to making recommendations for the benefit of the individual claimant or claimants.

Background

422.     Because the Bill will extend the recommendations power to benefit persons other than the claimant, this provision is necessary to ensure that such recommendations do not affect national security.

Clause 125: Remedies: occupational pension schemes

Effect

423.     This clause sets out the additional remedies available to employment tribunals in cases involving occupational pension schemes. These are cases in which the respondent is an employer, or the trustee or manager of the pension scheme; and the complaint relates to the terms on which membership is offered to a pension scheme or how members of an existing scheme are treated. In these cases the tribunal can in addition to the remedies of declaration, compensation and recommendation, also make a declaration about the terms on which a person should be admitted as a member to that scheme or a declaration about the rights of an existing member of that scheme to not be discriminated against.

424.     However, a tribunal can award compensation only for injured feelings or for failure to comply with a recommendation; it cannot compensate the claimant for loss caused by the unlawful discrimination.

 
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Prepared: 4 December 2009