Equality Bill

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
47

71
Sex discrimination in relation to contractual pay
(1)
This section applies in relation to a term of a person’s work—
(a)
that relates to pay, but
(b)
in relation to which a sex equality clause or rule has no effect.
(2)
The relevant sex discrimination provision (as defined by section 70) has no
5
effect in relation to the term except in so far as treatment of the person amounts
to a contravention of the provision by virtue of section 13 or 14.
Pregnancy and maternity equality
72
Relevant types of work
Sections 73 to 76 apply where a woman—
10
(a)
is employed, or
(b)
holds a personal or public office.
73
Maternity equality clause
(1)
If the terms of the woman’s work do not (by whatever means) include a
maternity equality clause, they are to be treated as including one.
15
(2)
A maternity equality clause is a provision that, in relation to the terms of the
woman’s work, has the effect referred to in section 74(1), (6) and (8).
(3)
In the case of a term relating to membership of or rights under an occupational
pension scheme, a maternity equality clause has only such effect as a maternity
equality rule would have.
20
74
Maternity equality clause: pay
(1)
A term of the woman’s work that provides for maternity-related pay to be
calculated by reference to her pay at a particular time is, if each of the following
three conditions is satisfied, modified as mentioned in subsection (5).
(2)
The first condition is that, after the time referred to in subsection (1) but before
25
the end of the protected period—
(a)
her pay increases, or
(b)
it would have increased had she not been on maternity leave.
(3)
The second condition is that the maternity-related pay is not—
(a)
what her pay would have been had she not been on maternity leave, or
30
(b)
the difference between the amount of statutory maternity pay to which
she is entitled and what her pay would have been had she not been on
maternity leave.
(4)
The third condition is that the terms of her work do not provide for the
maternity-related pay to be subject to—
35
(a)
an increase as mentioned in subsection (2)(a), or
(b)
an increase that would have occurred as mentioned in subsection (2)(b).
(5)
The modification referred to in subsection (1) is a modification to provide for
the maternity-related pay to be subject to—
(a)
any increase as mentioned in subsection (2)(a), or
40

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
48

(b)
any increase that would have occurred as mentioned in subsection
(2)(b).
(6)
A term of her work that—
(a)
provides for pay within subsection (7), but
(b)
does not provide for her to be given the pay in circumstances in which
5
she would have been given it had she not been on maternity leave,

is modified so as to provide for her to be given it in circumstances in which it
would normally be given.
(7)
Pay is within this subsection if it is—
(a)
pay (including pay by way of bonus) in respect of times before the
10
woman is on maternity leave,
(b)
pay by way of bonus in respect of times when she is on compulsory
maternity leave, or
(c)
pay by way of bonus in respect of times after the end of the protected
period.
15
(8)
A term of the woman’s work that—
(a)
provides for pay after the end of the protected period, but
(b)
does not provide for it to be subject to an increase to which it would
have been subject had she not been on maternity leave,

is modified so as to provide for it to be subject to the increase.
20
(9)
Maternity-related pay is pay (other than statutory maternity pay) to which a
woman is entitled—
(a)
as a result of being pregnant, or
(b)
in respect of times when she is on maternity leave.
(10)
A reference to the protected period is to be construed in accordance with
25
section 18.
75
Maternity equality rule
(1)
If an occupational pension scheme does not include a maternity equality rule,
it is to be treated as including one.
(2)
A maternity equality rule is a provision that has the effect set out in subsections
30
(3) and (4).
(3)
If a relevant term does not treat time when the woman is on maternity leave as
it treats time when she is not, the term is modified so as to treat time when she
is on maternity leave as time when she is not.
(4)
If a term confers a relevant discretion capable of being exercised so that time
35
when she is on maternity leave is treated differently from time when she is not,
the term is modified so as not to allow the discretion to be exercised in that
way.
(5)
A term is relevant if it is—
(a)
a term relating to membership of the scheme,
40
(b)
a term relating to the accrual of rights under the scheme, or
(c)
a term providing for the determination of the amount of a benefit
payable under the scheme.
(6)
A discretion is relevant if its exercise is capable of affecting—

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
49

(a)
membership of the scheme,
(b)
the accrual of rights under the scheme, or
(c)
the determination of the amount of a benefit payable under the scheme.
(7)
This section does not require the woman’s contributions to the scheme in
respect of time when she is on maternity leave to be determined otherwise than
5
by reference to the amount she is paid in respect of that time.
(8)
This section, so far as relating to time when she is on ordinary maternity leave
but is not being paid by her employer, applies only in a case where the
expected week of childbirth began on or after 6 April 2003.
(9)
This section, so far as relating to time when she is on additional maternity leave
10
but is not being paid by her employer—
(a)
does not apply to the accrual of rights under the scheme in any case;
(b)
applies for other purposes only in a case where the expected week of
childbirth began on or after 5 October 2008.
(10)
In this section—
15
(a)
a reference to being on maternity leave includes a reference to having
been on maternity leave, and
(b)
a reference to being paid by the employer includes a reference to
receiving statutory maternity pay from the employer.
76
Exclusion of pregnancy and maternity discrimination provisions
20
(1)
The relevant pregnancy and maternity discrimination provision has no effect
in relation to a term of the woman’s work that is modified by a maternity
equality clause or rule.
(2)
The inclusion in the woman’s terms of a term that requires modification by
virtue of section 73(2) or (3) is not pregnancy and maternity discrimination for
25
the purposes of the relevant pregnancy and maternity discrimination
provision.
(3)
The relevant pregnancy and maternity discrimination provision is, in relation
to a description of work given in the first column of the table, the provision
referred to in the second column so far as relating to pregnancy and maternity.
30

Description of work
Provision

Employment
Section 39(2)

Appointment to a personal office
Section 49(6)

Appointment to a public office
Section 50(6)

Disclosure of information
35
77
Discussions about pay
(1)
A term of a person’s work that purports to prevent or restrict the person (P)
from disclosing or seeking to disclose information about the terms of P’s work

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
50

is unenforceable against P in so far as P makes or seeks to make a relevant pay
disclosure.
(2)
A term of a person’s work that purports to prevent or restrict the person (P)
from seeking disclosure of information from a colleague about the terms of the
colleague’s work is unenforceable against P in so far as P seeks a relevant pay
5
disclosure from the colleague; and “colleague” includes a former colleague in
relation to the work in question.
(3)
A disclosure is a relevant pay disclosure if made for the purpose of enabling
the person who makes it, or the person to whom it is made, to find out whether
or to what extent there is, in relation to the work in question, a connection
10
between pay and having (or not having) a particular protected characteristic.
(4)
The following are to be treated as protected acts for the purposes of the relevant
victimisation provision—
(a)
seeking a disclosure that would be a relevant pay disclosure;
(b)
making or seeking to make a relevant pay disclosure;
15
(c)
receiving information disclosed in a relevant pay disclosure.
(5)
The relevant victimisation provision is, in relation to a description of work
specified in the first column of the table, section 27 so far as it applies for the
purposes of a provision mentioned in the second column.

Description of work
Provision by virtue of which

20

section 27 has effect

Employment
  Section 39(3) or (4)

Appointment to a personal office
  Section 49(5) or (8)

Appointment to a public office
  Section 50(5) or (9)

78
Gender pay gap information
25
(1)
Regulations may require employers to publish information relating to the pay
of employees for the purpose of showing whether, by reference to factors of
such description as is prescribed, there are differences in the pay of male and
female employees.
(2)
This section does not apply to—
30
(a)
an employer who has fewer than 250 employees;
(b)
a person specified in Schedule 19;
(c)
a government department or part of the armed forces not specified in
that Schedule.
(3)
The regulations may prescribe—
35
(a)
descriptions of employer;
(b)
descriptions of employee;
(c)
how to calculate the number of employees that an employer has;
(d)
descriptions of information;
(e)
the time at which information is to be published;
40
(f)
the form and manner in which it is to be published.

Equality Bill
Part 5 — Work
Chapter 3 — Equality of terms
51

(4)
Regulations under subsection (3)(e) may not require an employer, after the first
publication of information, to publish information more frequently than at
intervals of 12 months.
(5)
The regulations may make provision for a failure to comply with the
regulations—
5
(a)
to be an offence punishable on summary conviction by a fine not
exceeding level 5 on the standard scale;
(b)
to be enforced, otherwise than as an offence, by such means as is
prescribed.
(6)
The reference to a failure to comply with the regulations includes a reference
10
to a failure by a person acting on behalf of an employer.
Supplementary
79
Comparators
(1)
This section applies for the purposes of this Chapter.
(2)
If A is employed, B is a comparator if subsection (3) or (4) applies.
15
(3)
This subsection applies if—
(a)
B is employed by A’s employer or by an associate of A’s employer, and
(b)
A and B work at the same establishment.
(4)
This subsection applies if—
(a)
B is employed by A’s employer or an associate of A’s employer,
20
(b)
B works at an establishment other than the one at which A works, and
(c)
common terms apply at the establishments (either generally or as
between A and B).
(5)
If A holds a personal or public office, B is a comparator if—
(a)
B holds a personal or public office, and
25
(b)
the person responsible for paying A is also responsible for paying B.
(6)
If A is a relevant member of the House of Commons staff, B is a comparator if—
(a)
B is employed by the person who is A’s employer under subsection (6)
of section 195 of the Employment Rights Act 1996 (c. 18), or
(b)
if subsection (7) of that section applies in A’s case, B is employed by the
30
person who is A’s employer under that subsection.
(7)
If A is a relevant member of the House of Lords staff, B is a comparator if B is
also a relevant member of the House of Lords staff.
(8)
Section 42 does not apply to this Chapter; accordingly, for the purposes of this
Chapter only, holding the office of constable is to be treated as holding a
35
personal office.
(9)
For the purposes of this section, employers are associated if—
(a)
one is a company of which the other (directly or indirectly) has control,
or
(b)
both are companies of which a third person (directly or indirectly) has
40
control.