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Clause 144: Void and unenforceable terms

Effect

479.     This clause deals with collective agreements (which are defined in the Trade Union and Labour Relations (Consolidation) Act 1992).

480.     It also deals with rules of undertakings of employers, trade organisations and qualifications bodies (which are defined in Part 5).

481.     Any term of a collective agreement is rendered void to the extent that it discriminates against a person or would otherwise lead to conduct prohibited by the Bill. Terms of collective agreements are made void rather than unenforceable because making them unenforceable would be of no help to those affected, since they are unenforceable in any case unless incorporated into a contract. The term is therefore made of no effect at all, leaving the interested parties to renegotiate.

482.     A rule of an undertaking which discriminates against a person or would otherwise lead to conduct prohibited by the Bill is made unenforceable. A rule of an undertaking is defined in clause 147 as a rule made by a qualifications body or trade organisation in relation to membership or conferral of a qualification, or a rule made by an employer for application to employees and prospective employees.

Background

483.     This clause replaces similar provisions in current legislation.

Example

  • A collective agreement which required jobs in a particular part of a factory to be given only to men would be void, so a woman who applied could not be refused on those grounds.

  • An indirectly discriminatory rule of a qualifications body (providing for example a professional qualification for plumbers) which required that applicants must have two years’ previous experience with a British firm would be unenforceable against a person who had the equivalent experience with a foreign firm. It would still be enforceable against a person who did not have the required experience at all (provided it was justified).

Clause 145: Declaration in respect of void term, etc.

Effect

484.     This clause enables an employment tribunal to declare a term of a collective agreement void, or a rule of an undertaking unenforceable, as set out in clause 141, when a person thinks that it might in the future have the effect of discriminating against him or her. Because collective agreements apply to many people in many (possibly varying) situations, it is not appropriate for a tribunal to modify them and so they are made void, rather than subject to modification or amendment, and the parties are left to renegotiate, bearing all those potentially affected in mind.

485.     The clause sets out who can make a complaint in each instance. Terms of discriminatory collective agreements can be challenged by employees or prospective employees. Rules of undertakings of employers can be challenged by employees or prospective employees; those of trade organisations by members or prospective members; and those of qualifications bodies by persons seeking or holding relevant qualifications (clause 54).

Background

486.     This clause replaces similar provisions in current legislation.

Examples

  • A person who is studying for an engineering qualification who is told he will only be eligible for it if he passes a test of his ability to write English can ask a tribunal to declare that the rule requiring the test is indirectly discriminatory and therefore, if unjustified, unenforceable.

Clause 146: Meaning of “qualifying compromise contract”

Effect

487.     This clause sets the conditions under which a compromise contract settling a case can be lawful, even though it seeks to limit the application of the Bill under clause 143.

488.     It must be a written contract which meets each of the following conditions. The conditions are that the contract is tailored to the circumstances of the claim and that the complainant has received independent advice from a named person who is insured or indemnified against the risk of a claim against him arising from that advice. The contract must state that the conditions about independent advice and insurance have been met.

489.     The clause describes who can be an independent adviser and includes a power to add new descriptions of people who may be independent advisers in the future. It makes clear that a conflict of interest prevents a person being an independent adviser and defines what a conflict of interest is.

Background

490.     The clause replaces provisions in current legislation which have the same purpose. The power to add to the kinds of person who may be independent advisers could be used to add, for example, Fellows of the Institute of Legal Executives employed by a solicitors’ practice.

Examples

  • An employee who settled a claim at an employment tribunal on the advice of a lawyer who works for the employer he was seeking to sue would still be able to pursue the claim (assuming a conciliation officer was not involved in the settlement). The settlement agreement would be unenforceable because the lawyer had a conflict of interest and therefore the agreement would not be a qualifying compromise contract.

  • An employee who settled a claim of harassment in a contract which also provides that she will forgo all other claims arising under the Act in exchange for a fixed sum would still be able to pursue a claim for damages because of a discriminatory failure to promote her. The term of the contract precluding all claims would be unenforceable in respect of the discrimination claim because it is insufficiently tailored to the circumstances of the claim and therefore is not a qualifying compromise contract in respect of it.

Clause 147: Interpretation

Effect

491.     This clause explains what is meant by various terms used in this Part of the Bill, or applies definitions provided elsewhere. These are referred to in the notes on earlier clauses.

PART 11: ADVANCEMENT OF EQUALITY

Chapter 1: Public sector equality duty

Clause 148: Public sector equality duty

Effect

492.     This clause imposes a duty, known as the public sector equality duty, on the public bodies listed in Schedule 19 to have due regard to three specified matters when exercising their functions. The three matters are:

  • eliminating conduct that is prohibited by the Bill, including breaches of non-discrimination rules in occupational pension schemes and equality clauses or rules which are read, respectively into a person’s terms of work and into occupational pension schemes;

  • advancing equality of opportunity between people who share a protected characteristic and people who do not share it; and

  • fostering good relations between people who share a protected characteristic and people who do not share it.

493.     The second and third matters apply to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. They do not apply to the protected characteristic of marriage and civil partnership.

494.     Subsections (3) and (4) expand on what it means to have due regard to the need to advance equality of opportunity and foster good relations.

495.     As well as the public bodies listed in Schedule 19, the clause also imposes the public sector equality duty on others that exercise public functions, but only in respect of their public functions. Clause 149 explains what is meant by “public function”.

496.     The clause makes clear that complying with the duty might mean treating some people more favourably than others, where doing so is allowed by the Bill. This includes treating disabled people more favourably than non-disabled people and making reasonable adjustments for them, making use of exceptions which permit different treatment, and using the positive action provisions in Chapter 2 of this Part where they are available.

497.     Schedule 18 sets out persons and functions to which the equality duty does not apply.

Background

498.     This clause replaces section 71 of the Race Relations Act 1976, section 49A of the Disability Discrimination Act 1995 and section 76A of the Sex Discrimination Act 1975. These provisions impose similar public sector equality duties in relation to race, disability and gender (including pregnancy and maternity as an implicit part of gender, and partly covering gender reassignment) respectively. There are no equivalent public sector equality duties for age, religion or belief or sexual orientation in current legislation. The clause extends the new public sector equality duty to cover gender reassignment in full, age, religion or belief and sexual orientation.

Examples

  • The duty could lead a police authority to review its recruitment procedures to ensure they did not unintentionally deter applicants from ethnic minorities, with the aim of eliminating unlawful discrimination.

  • The duty could lead a local authority to target training and mentoring schemes at disabled people to enable them to stand as local councillors, with the aim of advancing equality of opportunity for different groups of people who have the same disability, and in particular encouraging their participation in public life.

  • The duty could lead a local authority to provide funding for a black women’s refuge for victims of domestic violence, with the aim of advancing equality of opportunity for women, and in particular meeting the different needs of women from different racial groups.

  • The duty could lead a large government department, in its capacity as an employer, to provide staff with education and guidance, with the aim of fostering good relations between its transsexual staff and its non-transsexual staff.

  • The duty could lead a local authority to review its use of internet-only access to council services; or focus “Introduction to Information Technology” adult learning courses on older people, with the aim of advancing equality of opportunity, in particular meeting different needs, for older people.

  • The duty could lead a school to review its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people.

  • The duty could lead a local authority to introduce measures to facilitate understanding and conciliation between Sunni and Shi’a Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs.

Clause 149: Public authorities and public functions

Effect

499.     This clause supplements clause 148. It introduces the Schedule that lists the public bodies that are subject to the public sector equality duty and provides for them to be subject to this duty in respect of all of their functions unless such a body is listed only in respect of some of its functions, in which case the duty only applies to those specified functions.

500.     “Public function” is given the same meaning as it has in the Human Rights Act 1998. This term is used in subsection (2) of clause 148, which extends the public sector equality duty to persons not listed in the Schedule but who exercise public functions.

Background

501.     The public sector equality duties in current legislation specify which bodies are subject to the duties in different ways. The Race Relations Act 1976 uses a list, while the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975 apply the disability equality duty and the gender equality duty to those who have “functions of a public nature”. The Bill combines the two approaches by including a list of public bodies subject to the duty, to provide legal certainty, and in addition applying the duty to anyone else who is exercising public functions (see subsection (2) of clause 148).

Clause 150: Power to specify public authorities

Effect

502.     The Schedule (Schedule 19) listing public bodies subject to the public sector equality duty will initially comprise 3 Parts. This clause enables a Minister of the Crown to make an order amending any of these parts of the Schedule. The changes might consist of adding a new body or removing an existing body, or moving a body from one Part of the Schedule to another. It also enables the Welsh Ministers and the Scottish Ministers, with the consent of a Minister of the Crown, to amend Parts 2 and 3 of the Schedule respectively, which list relevant Welsh and Scottish bodies subject to the duty.

503.     Relevant Welsh and Scottish bodies (as defined in clause 156) cannot be added to Part 1 of the Schedule. They must be included in Parts 2 and 3 respectively. Nor can cross-border Welsh and Scottish bodies (as defined in clause 156). Only a Minister of the Crown has the power to amend the Schedule in relation to cross-border Welsh and Scottish bodies. They must be added to what will become a new Part 4, which will be created when the first cross-border body is added to the Schedule.

504.     The power to add to the Schedule can only be used where the person exercising the power considers that the person being added is exercising at least one public function. This means that a wholly private company could not be added unless it were carrying out what the person exercising the power considered to be a public function.

Examples

  • A Minister of the Crown may decide that a new public body which has just been created should be included in the Schedule, and add it to the appropriate part.

  • A public body might cease its devolved activities, and so a Minister of the Crown might move it to part 1 of the Schedule from another part of the Schedule.

Clause 151: Power to specify public authorities: consultation and consent

Effect

505.     This clause sets out who a Minister of the Crown must consult before exercising a power under clause 150 to amend Schedule 19. On each occasion the Minister must consult Equality and Human Rights Commission. If the Minister is modifying the Schedule in respect of a relevant Welsh body, or a cross-border Welsh body, then he or she must also consult the Welsh Ministers. And similarly, if the amendment relates to a relevant Scottish body or a cross-border Scottish body, there is a requirement to consult the Scottish Ministers.

506.     The clause also provides that, before the Welsh Ministers amend Part 2 of the Schedule with respect to relevant Welsh bodies, they must first consult Equality and Human Rights Commission and obtain the consent of a Minister of the Crown. The same requirements apply to Scottish Ministers with respect to Part 3 of the Schedule and relevant Scottish bodies.

Background

507.     The Race Relations Act 1976 does not contain a requirement for the Lord Privy Seal to consult before amending the Schedule of bodies subject to the general race equality duty. Neither the Scottish Ministers nor the Welsh Ministers have the power to amend the Schedule. The Disability Discrimination Act 1995 and the Sex Discrimination Act 1975 do not adopt a list-based approach to the general duty.

Clause 152: Power to impose specific duties

Effect

508.     This clause enables a Minister of the Crown to make regulations imposing specific duties on public bodies listed in part 1 of Schedule 19 to enable them to carry out the public sector equality duty more effectively. The Welsh Ministers can similarly impose specific duties on relevant Welsh bodies listed in part 2 of the Schedule, and the Scottish Ministers can impose specific duties on relevant Scottish bodies listed in part 3 of the Schedule.

509.     Clause 153 deals with the imposition of specific duties on public bodies listed in part 4 of the Schedule.

510.     The Equality and Human Rights Commission must be consulted before specific duties are imposed.

Background

511.     This clause replaces similar provisions in current legislation for the Lord Privy Seal and the Scottish Ministers to impose specific duties for the race and gender public sector equality duties, and for the Secretary of State and the Scottish Ministers to impose specific duties for the disability public sector equality duty. The Welsh Ministers currently do not have the power to impose specific duties on Welsh bodies.

512.     The power has in the past been used to require listed public bodies to prepare and publish race, disability and gender equality schemes, for example.

Clause 153: Power to impose specific duties: cross-border authorities

Effect

513.     This clause sets out the process for determining who imposes specific duties on any cross-border Welsh and Scottish bodies that may in time be added to part 4 of the Schedule.

514.     Whenever a body is listed in Part 4 of the Schedule, beside its entry will appear a letter corresponding to the procedure to be followed.

515.     For all the procedures, the person imposing the specific duties must consult the Equality and Human Rights Commission.

Background

516.     In respect of the existing race and gender public sector equality duties the Scottish Ministers currently have the power to impose specific duties on the devolved functions of Anglo-Scottish cross-border bodies, subject to consultation with the Lord Privy Seal or, in the case of the disability public sector equality duty, the Secretary of State. The Lord Privy Seal in relation to the race and gender public sector equality duties, or the Secretary of State in relation to the disability public sector equality duty, has the power to impose specific duties on the non-devolved, or reserved, functions of those Anglo-Scottish cross-border bodies, again subject to consultation with the Scottish Ministers. Before imposing specific duties in respect of the existing race, disability and gender public sector equality duties which relate to functions in Wales exercisable by a person who is not a Welsh public authority, the Lord Privy Seal or the Secretary of State as the case may be must consult the Welsh Ministers.

Clause 154: Power to impose specific duties: supplementary

Effect

517.     This clause provides that a specific duty imposed using the powers in clauses 152 and 153 may require public authorities to consider matters set out elsewhere by a Minister of the Crown, or the Welsh or Scottish Ministers.

518.     This clause also makes clear that a Minister of the Crown or the Welsh or Scottish Ministers may impose specific duties on public authorities listed in Schedule 19 that are also contracting authorities for public procurement purposes in relation to their public procurement functions, for example when buying goods and services from private firms. “Public procurement functions” are those activities that fall within the European law public procurement regime. The provisions on public procurement do not affect the extent of any other provision that may be made using the powers in clauses 152 and 153 outside this field.

519.     This clause also provides that a Minister of the Crown and the Welsh and Scottish Ministers may modify or remove duties that they have imposed. A duty imposed by one Minister of the Crown may be modified by a different Minister of the Crown.

Background

520.     The current public sector equality duties do not provide for the imposition of specific duties which require public bodies to take into account matters set out elsewhere. It is inherent, but not explicit, in the current public sector equality duties that duties may be imposed which apply to that body’s public procurement functions.

Examples

  • A person exercising the power may decide to impose a specific duty that requires specified public bodies to take into account particular national priorities set out in a Public Service Agreement when setting their equality objectives.

  • A person exercising the power may decide to impose a specific duty which requires contracting authorities to set out how they will use their procurement functions to better meet the requirements of the public sector equality duty.

Clause 155: Enforcement

Effect

521.     This clause is designed to make it clear that the duties imposed by or under Chapter 1 of Part 11 do not create any private law rights for individuals. These duties, are, however, enforceable by way of judicial review.

Background

522.     This clause is new, but it reflects the position under current legislation.

Example

  • A local council fails to give due regard to the requirements of the public sector equality duty when deciding to stop funding a local women’s refuge. An individual would not be able to sue the local council as a result and claim compensation. They would need to consider whether to pursue judicial review proceedings.

Clause 156: Interpretation

Effect

523.     This clause defines the terms used in this Chapter to refer to devolved issues.

524.     The other clauses in this Chapter refer to relevant Welsh and Scottish bodies, cross-border Welsh and Scottish bodies and devolved Welsh and Scottish functions. This clause explains what all those terms mean.

Chapter 2: Positive action

Clause 157: Positive action: general

Effect

525.     This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.

526.     The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed.

527.     To provide greater legal certainty about what action is proportionate in particular circumstances, the clause contains a power to make regulations setting out action which is not permitted under this clause.

528.     If positive action measures are taken in recruitment or promotion under clause 158(3) or the selection of political candidates under clause 104, those provisions will apply rather than this clause.

529.     Should the provision allowing single-sex shortlists for the selection of political candidates (clause 104(7)) be repealed, this clause will not permit action to be taken similar to that permissible under that provision.

530.     This clause does not allow any action to be taken that would be prohibited by other legislation.

Background

531.     This clause is new. There are existing positive action provisions in current legislation, but these apply to different protected characteristics in different ways and in some cases are specific about the types of action they permit. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics.

Examples

  • Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them.

  • An NHS Primary Care Trust identifies that lesbians are less likely to be aware that they are at risk of cervical cancer and less likely to access health services such as national screening programmes. It is also aware that those who do not have children do not know that they are at an increased risk of breast cancer. Knowing this it could decide to establish local awareness campaigns for lesbians on the importance of cancer screening.

 
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Prepared: 4 December 2009