Equality Bill - continued          House of Lords

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Background

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

Chapter 4: Equality of terms

Clause 126: Jurisdiction

Effect

426.     This clause sets out the types of cases relating to equality of terms which employment tribunals have jurisdiction to hear. Tribunals may hear and decide claims (including those referred to them by courts) involving equality in the rules of occupational pension schemes and claims relating to an equality clause, including claims relating to pregnancy and maternity equality.

427.     A responsible person (as defined in clause 80, such as an employer, or a pension scheme trustee or manager) can also ask a tribunal for a declaration of each party’s rights in relation to a dispute or claim about an equality clause or rule.

428.     Members of the armed forces must bring a complaint under service complaints procedures before they can bring a claim to a tribunal.

429.     This clause does not alter any jurisdiction the courts or the sheriff have in relation to an equality clause or rule.

Background

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

Example

  • An employment tribunal can hear claims brought by an employee, office holder or member of the armed forces in relation to a breach of an equality clause and in relation to breach of an equality rule in relation to a pension scheme.

Clause 127: References by court to tribunal, etc.

Effect

431.     The Bill does not prevent the civil courts from considering a contractual claim relating to an equality clause or rule or a non-discrimination rule. However, this clause gives a court the power to strike out such a claim if it would be more convenient for a tribunal to deal with it, or to refer an issue relating to such a claim to an employment tribunal.

Background

432.     Employment tribunals have the specialist knowledge and procedures to handle claims relating to equality of terms and this clause gives a court power to refer such issues to a tribunal. This clause replaces similar provisions in current legislation.

Example

  • An employer sues an employee in a civil court for breach of her employment contract. In response, the employee counterclaims for breach of an equality clause. The court decides to refer the counterclaim to an employment tribunal and postpones the case until the tribunal’s decision.

Clause 128: Time limits

Effect

433.     A person who wishes to bring a claim for breach of an equality clause or rule or to apply for a declaration about the effect of such a clause or rule, must normally do so within six months of the end of the employment contract. In certain circumstances, this clause gives a claimant more time to make a claim. This applies where the employer conceals certain information from the claimant or where the claimant is under an incapacity (as defined in clause 140). Members of the armed forces have an additional three months in which to bring a claim because they must first make a complaint under the service complaint procedures.

Background

434.     This provision replaces similar provisions in current legislation. Time limits provide certainty by requiring claims to be brought within specified periods and also take into account factors which may affect a claimant’s ability to assert his or her claim.

Example

  • A former member of the armed forces wishes to bring a claim about her terms of service. She first makes a service complaint and then brings a claim for breach of an equality clause in an employment tribunal. The claim for breach of an equality clause must be brought in an employment tribunal within nine months after her period of service ended.

Clause 129: Section 128: supplementary

Effect

435.     Under clause 128, the time limit for bringing a claim for breach of an equality clause is six months (nine months for members of the armed forces) from the date on which employment ended in a standard case. Different time limits apply to non-standard cases. This clause defines what is not a standard case.

436.     In a stable work case, a series of fixed or short term contracts and breaks between contracts is treated as a continuing single contract. In a standard case, the time limit would start at the end of the contract of employment. In a stable work case, the time limit only begins to run when the stable working relationship ends.

437.     In a concealment case, the employer deliberately conceals relevant information from the employee. The time limit starts to run when the employee discovers, or could reasonably have discovered, the information.

438.     In an incapacity case, the appropriate time limit will start to run when the incapacity ends. Clause 140 sets out when a person has an incapacity.

439.     The clause makes similar provisions for claims by members of the armed forces and in relation to occupational pension schemes.

Background

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

Examples

  • A woman’s employment ends due to mental health problems which result in her temporary loss of capacity to make decisions for herself. She could make a claim for breach of an equality clause to an employment tribunal but is not well enough to do so. The six month time limit will start when she recovers sufficiently to make a claim.

  • A woman suspects that her male colleagues who do the same work are better paid. Her employer reassures her that she and her colleagues get the same salary but he deliberately does not tell her that the men also receive performance bonuses under their contracts. Her male colleagues refuse to discuss their pay with her. The woman only discovers the discrepancy between her pay and the men’s when one of the men tells her 18 months after she ceases employment. Within six months, she makes an equal pay claim to a tribunal based on the value of the bonus payments she would have received if her contract had provided for them. Although the woman’s claim is made more than six months after her employment ends, she shows that her employer deliberately misled her into believing her salary was the same as the men’s. She had no way of discovering the truth earlier. Her claim can proceed as a concealment case.

Clause 130: Assessment of whether work is of equal value

Effect

441.     Where an employment tribunal has to decide if the work of a claimant and comparator are of equal value, this clause gives it the power to require an independent expert, designated by the Advisory, Conciliation and Arbitration Service to prepare a report on the matter.

442.     Unless the tribunal withdraws its request for a report (in which case it can ask the expert to give it any documents or other information the expert has to help it make a decision) it must wait for the expert’s report before deciding whether the work is of equal value.

443.     If there has been a job evaluation study in relation to the work involved and the study finds that the claimant’s work is not of equal value to the work of the comparator, the tribunal is required to come to the same decision unless it has a good reason to suspect that the study is discriminatory or unreliable.

Background

444.     This provision replaces similar provisions in current legislation.

Example

  • A woman claims that her job is of equal value to that of a male comparator. The employer produces a job evaluation study to the tribunal in which the woman’s job is rated below her comparator’s job. The employer asks the tribunal to dismiss the woman’s claim but the woman is able to show that the study is unreliable because it is out of date and does not take account of changes in the jobs resulting from new technology. The tribunal can disregard the study’s conclusion and can proceed to decide if the work of the claimant and comparator are of equal value.

Clause 131: Remedies in non-pensions cases

Effect

445.     If a claim for breach of an equality clause (other than in relation to a pension scheme) succeeds, the court or employment tribunal can make a declaration clarifying what the rights of the parties to the claim are.

446.     The court or tribunal can also order the employer to pay the claimant arrears of pay or damages. The period used for calculating arrears depends on the type of case. There are different periods for claims brought in England and Wales and in Scotland. The basic period in relation to England and Wales is six years from the date a claim is made. In relation to Scotland, the period is five years. Special provision is made for claims involving concealment and/or incapacity (as set out in clause 134).

Background

447.     This provision replaces similar provisions in current legislation.

Example

  • A woman successfully establishes that her work is the same as her male comparator’s and that in addition to a discrepancy between her pay and that of her male colleague, she has been denied access to the benefit of a company car. The claimant is entitled to claim the difference in pay going back up to six years from the date of the claim. She is also entitled to monetary compensation for not having had the use of a company car.

Clause 132: Remedies in pensions cases

Effect

448.     This clause allows an employment tribunal to declare that in cases where an equality rule or equality clause has been breached in relation to:

  • scheme membership, the complainant is entitled to be admitted to the scheme from a date specified by the tribunal, although the date cannot be earlier than 8th April 1976;

  • scheme rights, the complainant is entitled to have any rights which would have accrued under the scheme secured from a date specified by the tribunal, although the date cannot be earlier than 17th May 1990.

449.     However, the clause prevents a tribunal ordering an award of compensation to the complainant.

Background

450.     This clause replicates requirements in the Equal Pay Act 1970, as modified by the Occupational Pension Schemes (Equal Treatment) Regulations 1995.

451.     The restrictions on dates derive from judgments of the European Court:

  • for scheme membership: 8th April 1976, the date of the Court’s judgment in Defrenne v Sabena. The Court, in holding that the principle of equal pay was directly effective, held that Article 141 (formerly Article 119) of the Treaty of Rome should not be applied to periods of service before the judgment.

  • for scheme rights: 17th May 1990, the date of the Court’s judgment in Barber v Guardian Royal Exchange Insurance Group, which established that occupational pensions were equal pay for the purposes of Article 119 of the Treaty of Rome.

Clause 133: Remedies in claims for arrears brought by pensioner members

Effect

452.     This clause allows a court or an employment tribunal to require compensation to be paid to a pensioner member for a breach of an equality clause or rule in relation to an occupational pension scheme and sets out the period for which arrears may be awarded for different types of cases. In a standard case in England and Wales, the period is six years before the date when a claim is made. Different periods apply to cases brought in England and Wales and to cases brought in Scotland. Special provision is made for claims involving concealment and/or incapacity (as set out in clause 134).

Background

453.     This clause replicates requirements in the Equal Pay Act 1970, as modified by the Occupational Pension Schemes (Equal Treatment) Regulations 1995.

Clause 134: Supplementary

Effect

454.     The amount an employment tribunal can award a successful claimant is affected by how far back in time it can go in making its calculation. The type of case before the tribunal determines this period. This clause defines the different types of cases.

Background

455.     This clause replicates the effect of similar provisions in current legislation.

Chapter 5: Miscellaneous

Clause 135: Burden of proof

Effect

456.     This clause provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Bill, the burden of proving their case starts with the claimant. Once the claimant has established sufficient facts to point to a breach having occurred, in the absence of any other explanation, the burden shifts onto the respondent to show that he or she did not breach the provisions of the Bill. The exception to this rule is if the proceedings relate to a criminal offence under this Bill.

Background

457.     Under current legislation, in most cases the burden of proof is reversed once the claimant has established a case to an initial level. However, the burden of proof is currently not reversed in race discrimination claims brought on grounds of colour and nationality; claims of victimisation which relate to race discrimination; non-work disability discrimination claims; and sex discrimination claims which relate to the exercise of public functions. In these areas the burden of proof will now be reversed once the claimant establishes his or her case to an initial level.

Example

  • A man of Chinese ethnic origin applies for a promotion at work but is not given an interview for the job. He finds that a number of white colleagues were given interviews despite having less experience and fewer qualifications. He brings a case for race discrimination before the employment tribunal and provides sufficient evidence to show that he had been treated less favourably because of his ethnic origin. It would then be up to his employer to prove that she had not discriminated against him in the promotion process.

Clause 136: Previous findings

Effect

458.     This clause provides, that if a person has brought a case under any of the current legislation which this Bill will replace which is listed in this clause, and a finding by a tribunal or court has been finalised, the issues decided in that case cannot be re-opened and litigated again under the provisions in this Bill.

Background

459.     This provision is necessary because the Bill is re-enacting many of the provisions in the legislation listed at subsection (2). This re-enactment should not provide a way to re-open issues before the courts which have been decided in proceedings under the existing legislation.

Clause 137: Obtaining information etc.

Effect

460.     This clause provides a mechanism for a person who thinks that he or she may have been unlawfully discriminated against, harassed or victimised to obtain information from the person they think has acted unlawfully against them (that is to say, the potential respondent or defendant). The person may ask questions either on a form prescribed by order by a Minister of the Crown or in some other form.

461.     The questions and the answers are admissible as evidence in a case brought under the Bill and the court or tribunal may draw inferences from a failure by the respondent to answer the questions posed within eight weeks or from evasive or equivocal answers.

462.     However the court or tribunal cannot draw such adverse inferences in certain specified circumstances. These are if the respondent says that to answer differently would have prejudiced criminal proceedings or revealed the reason for criminal proceedings being withdrawn or not being brought and this is reasonable. The clause contains a power for a Minister of the Crown to specify by order additional circumstances where the adverse inferences would not apply.

Background

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

Clause 138: Interest

Effect

464.     This clause enables a Minister of the Crown to make regulations enabling an employment tribunal to add interest payments to any award of compensation made to a claimant as a result of a discrimination case brought under this Bill. The regulations can set out how the tribunal should calculate how much interest should be paid.

465.     The regulations may provide that interest is to be calculated in a different way in discrimination proceedings from how it is in other cases before the employment tribunals, so they can modify the effect of an order made under the Employment Tribunals Act 1996 about interest calculations which applies to employment cases more generally.

Background

466.     This replicates powers contained in current legislation.

Example

  • A claimant is awarded compensation for being discriminated against by his employer. Regulations made under this clause may provide that if the award is not settled by the respondent within 14 days of the employment tribunal’s decision then interest is to accrue on this award. The current regulations specify that the rate of interest applied to unpaid awards is fixed at 8%. A different rate can be applied if this is provided in regulations.

Clause 139: Conduct giving rise to separate proceedings

Effect

467.     This clause enables an employment tribunal to transfer a case to a county or sheriff court, or a court to transfer a case to an employment tribunal, if it is based on the same conduct as one or more separate cases and one of the claims relates to instructing, causing or inducing a person to discriminate against, harass or victimise another person. It also provides that an employment tribunal or court cannot make a decision about such a case which is inconsistent with an earlier decision about the same conduct.

Background

468.     This is a new provision which will allow for the transfer of certain types of connected cases between the tribunals and courts.

Example

  • An employer instructs an employee to discriminate against a customer. The customer brings a case against the employer or an employee in a county court. The employee brings a case against the employer in an employment tribunal. These claims both arise out of the same conduct and so the court and the tribunal can transfer one set of proceedings so that they can be dealt with together as this is a better way of managing the cases.

Clause 140: Interpretation, etc.

Effect

469.     This clause explains the meaning of various terms used in this Part.

PART 10: CONTRACTS, ETC.

Clause 141: Unenforceable terms

Effect

470.     This clause makes terms of contracts which discriminate against a person or would otherwise lead to conduct prohibited by the Bill unenforceable in that respect. But a person who would have been disadvantaged by any such term will still be able to rely on it so as to obtain any benefit to which it entitles him.

471.     For disability alone, this clause also applies to terms of non-contractual agreements relating to the provision of employment services (within clause 56(2)(a) to (e)) or group insurance arrangements for employees. These terms are referred to in the clause as “relevant non-contractual terms”.

472.     This clause does not apply to a term of contract modified by an equality clause under Part 5, Chapter 3, because once the term is modified it is no longer discriminatory. Nor, as a result of clause 147, does it deal with contractual terms which may breach the public sector equality duty (Part 11) or the public sector duty regarding socio-economic inequalities (Part 1), to which different enforcement mechanisms apply.

Background

473.     The clause replaces provisions in current legislation which have a similar effect, and maintains the specific protection for certain non-contractual provisions currently given in the Disability Discrimination Act 1995.

Example

  • A term in a franchise agreement which included a requirement that the franchisee should only employ Asian people could not be enforced by the franchisor unless he could objectively justify it (unless an exception applies). But the franchisee could still obtain any benefit he is due under the term, for example he could continue operating the franchise. However, if the franchisee complied with the discriminatory term, a person discriminated against under it could make a claim against the franchisee for unlawful discrimination under other provisions in the Bill.

Clause 142: Removal or modification of unenforceable terms

Effect

474.     This clause allows a county court (or a sheriff court in Scotland) to modify or remove a contractual (or relevant non-contractual) term which is made unenforceable under clause 141, when asked to do so by a person who has an interest in the contract (which includes anyone affected by it). The court may also decide that the term is to be treated as having been removed or modified during the period prior to the making of the order.

475.     The court must first ensure that anyone who would be affected has been told of the proceedings and given an opportunity to make their views known. Rules of court determine what the court must do to meet this obligation.

Background

476.     This clause replaces similar provisions in current legislation.

Example

  • A person renting an office in a serviced office block could ask for a term in the rental contract to be amended if the term discriminated indirectly, for example by including an unjustified requirement that people entering the premises remove any facial covering (thus discriminating against Muslim women). The term could be adjusted by the court or sheriff to allow special arrangements to be made to satisfy both genuine security needs of other users and the religious needs of Muslim women visiting the claimant.

Clause 143: Contracting out

Effect

477.     Under this clause, contractual and relevant non-contractual terms which try to exclude or limit the operation of any provision in the Bill (which includes those dealing with equality of terms) or a provision of secondary legislation made under the Bill (for example regulations made under clause 81 (Ships and hovercraft)) are unenforceable by the person in whose favour the term operates. There are exceptions to this to allow negotiated settlement of claims in the following circumstances:

  • a contract settling a claim in an employment tribunal (including an agreement settling a claim for a breach of an equality clause) that has been negotiated with the help of a conciliation officer or which meets the standards set out in clause 146 (meaning of qualifying compromise contract). This includes an arbitration agreement made in accordance with a scheme under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992 (where the parties agree to submit a dispute to arbitration).

  • a contract settling a county or sheriff court claim.

Background

478.     This clause replaces similar provisions in current legislation.

Examples

  • A woman who thinks she may have a claim for unlawful discrimination upon being made redundant may give up any right to pursue the claim under the Act in return for payment. She will not then be able to ask a court to modify or remove that term so as to pursue the claim at a later date.

  • However, if the agreement was not reached with the assistance of a conciliation officer or was not a qualifying compromise agreement, it would be unenforceable (and thus would not prevent the claimant pursuing the claim before an employment tribunal).

 
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Prepared: 4 December 2009