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Equality Bill


Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

77

 

121     

References by court to tribunal, etc.

(1)   

If it appears to a court in which proceedings are pending that a claim or

counter-claim relating to a non-discrimination rule could more conveniently

be determined by an employment tribunal, the court may strike out the claim

or counter-claim.

5

(2)   

If in proceedings before a court a question arises about a non-discrimination

rule, the court may (whether or not on an application by a party to the

proceedings)—

(a)   

refer the question, or direct that it be referred by a party to the

proceedings, to an employment tribunal for determination, and

10

(b)   

stay or sist the proceedings in the meantime.

122     

Time limits

(1)   

Proceedings on a complaint within section 119 may not be brought after the

end of—

(a)   

the period of 3 months starting with the date of the act to which the

15

complaint relates, or

(b)   

such other period as the employment tribunal thinks just and equitable.

(2)   

Proceedings may not be brought in reliance on section 120(1) after the end of—

(a)   

the period of 6 months starting with the date of the act to which the

proceedings relate, or

20

(b)   

such other period as the employment tribunal thinks just and equitable.

(3)   

For the purposes of this section—

(a)   

conduct extending over a period is to be treated as done at the end of

the period;

(b)   

failure to do a thing is to be treated as occurring when the person in

25

question decided on it.

(4)   

In the absence of evidence to the contrary, a person (P) is to be taken to decide

on failure to do a thing—

(a)   

when P does an act inconsistent with doing the thing, or

(b)   

if P does no inconsistent act, on the expiry of the period in which P

30

might reasonably have been expected to do the thing.

123     

Remedies: general

(1)   

This section applies if an employment tribunal finds that there has been a

contravention of a provision referred to in section 119(1).

(2)   

The tribunal may—

35

(a)   

make a declaration as to the rights of the complainant and the

respondent in relation to the matters to which the proceedings relate;

(b)   

order the respondent to pay compensation to the complainant;

(c)   

make an appropriate recommendation.

(3)   

An appropriate recommendation is a recommendation that within a specified

40

period the respondent takes specified steps for the purpose of obviating or

reducing the adverse effect of any matter to which the proceedings relate—

(a)   

on the complainant;

(b)   

on any other person.

 
 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

78

 

(4)   

Subsection (5) applies if the tribunal—

(a)   

finds that a contravention is established by virtue of section 19, but

(b)   

is satisfied that the provision, criterion or practice was not applied with

the intention of discriminating against the complainant.

(5)   

It must not make an order under subsection (2)(b) unless it first considers

5

whether to act under subsection (2)(a) or (c).

(6)   

The amount of compensation which may be awarded under subsection (2)(b)

corresponds to the amount which could be awarded by a county court or the

sheriff under section 118.

(7)   

If a respondent fails, without reasonable excuse, to comply with an appropriate

10

recommendation in so far as it relates to the complainant, the tribunal may—

(a)   

if an order was made under subsection (2)(b), increase the amount of

compensation to be paid;

(b)   

if no such order was made, make one.

124     

Remedies: national security

15

(1)   

In national security proceedings, an appropriate recommendation (as defined

by section 123) must not be made in relation to a person other than the

complainant if the recommendation would affect anything done by—

(a)   

the Security Service,

(b)   

the Secret Intelligence Service,

20

(c)   

the Government Communications Headquarters, or

(d)   

a part of the armed forces which is, in accordance with a requirement

of the Secretary of State, assisting the Government Communications

Headquarters.

(2)   

National security proceedings are—

25

(a)   

proceedings to which a direction under section 10(3) of the

Employment Tribunals Act 1996 (c. 17) (national security) relates;

(b)   

proceedings to which an order under section 10(4) of that Act relates;

(c)   

proceedings (or the part of proceedings) to which a direction pursuant

to regulations made under section 10(5) of that Act relates;

30

(d)   

proceedings (or the part of proceedings) in relation to which an

employment tribunal acts pursuant to regulations made under section

10(6) of that Act.

125     

Remedies: occupational pension schemes

(1)   

This section applies if an employment tribunal finds that there has been a

35

contravention of a provision referred to in section 119(1) in relation to—

(a)   

the terms on which persons become members of an occupational

pension scheme, or

(b)   

the terms on which members of an occupational pension scheme are

treated.

40

(2)   

In addition to anything which may be done by the tribunal under section 123

the tribunal may also by order declare—

(a)   

if the complaint relates to the terms on which persons become members

of a scheme, that the complainant has a right to be admitted to the

scheme;

45

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

79

 

(b)   

if the complaint relates to the terms on which members of the scheme

are treated, that the complainant has a right to membership of the

scheme without discrimination.

(3)   

The tribunal may not make an order under subsection (2)(b) of section 123

unless—

5

(a)   

the compensation is for injured feelings, or

(b)   

the order is made by virtue of subsection (7) of that section.

(4)   

An order under subsection (2)—

(a)   

may make provision as to the terms on which or the capacity in which

the claimant is to enjoy the admission or membership;

10

(b)   

may have effect in relation to a period before the order is made.

Chapter 4

Equality of terms

126     

Jurisdiction

(1)   

An employment tribunal has, subject to subsection (6), jurisdiction to

15

determine a complaint relating to a breach of an equality clause or rule.

(2)   

The jurisdiction conferred by subsection (1) includes jurisdiction to determine

a complaint arising out of a breach of an equality clause or rule; and a reference

in this Chapter to a complaint relating to such a breach is to be read

accordingly.

20

(3)   

An employment tribunal also has jurisdiction to determine an application by a

responsible person for a declaration as to the rights of that person and a worker

in relation to a dispute about the effect of an equality clause or rule.

(4)   

An employment tribunal also has jurisdiction to determine an application by

the trustees or managers of an occupational pension scheme for a declaration

25

as to their rights and those of a member in relation to a dispute about the effect

of an equality rule.

(5)   

An employment tribunal also has jurisdiction to determine a question that—

(a)   

relates to an equality clause or rule, and

(b)   

is referred to the tribunal by virtue of section 127(2).

30

(6)   

This section does not apply to a complaint relating to an act done when the

complainant was serving as a member of the armed forces unless—

(a)   

the complainant has made a service complaint about the matter, and

(b)   

the complaint has not been withdrawn.

(7)   

Subsections (2) to (5) of section 120 apply for the purposes of subsection (6) of

35

this section as they apply for the purposes of subsection (1) of that section.

(8)   

In proceedings before an employment tribunal on a complaint relating to a

breach of an equality rule, the employer—

(a)   

is to be treated as a party, and

(b)   

is accordingly entitled to appear and be heard.

40

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

80

 

(9)   

Nothing in this section affects such jurisdiction as the High Court, a county

court, the Court of Session or the sheriff has in relation to an equality clause or

rule.

127     

References by court to tribunal, etc.

(1)   

If it appears to a court in which proceedings are pending that a claim or

5

counter-claim relating to an equality clause or rule could more conveniently be

determined by an employment tribunal, the court may strike out the claim or

counter-claim.

(2)   

If in proceedings before a court a question arises about an equality clause or

rule, the court may (whether or not on an application by a party to the

10

proceedings)—

(a)   

refer the question, or direct that it be referred by a party to the

proceedings, to an employment tribunal for determination, and

(b)   

stay or sist the proceedings in the meantime.

128     

Time limits

15

(1)   

This section applies to—

(a)   

a complaint relating to a breach of an equality clause or rule, or

(b)   

an application for a declaration referred to in section 126(3) or (4).

(2)   

Proceedings on the complaint or application may not be brought in an

employment tribunal after the end of the qualifying period.

20

(3)   

If the complaint or application relates to terms of work other than terms of

service in the armed forces, the qualifying period is, in a case mentioned in the

first column of the table, the period mentioned in the second column.

 

Case

Qualifying period

 
 

A standard case

The period of 6 months beginning with the last

 

25

  

day of the employment or appointment.

 
 

A stable work case (but not if

The period of 6 months beginning with the day

 
 

it is also a concealment or

on which the stable working relationship

 
 

incapacity case (or both))

ended.

 
 

A concealment case (but not if

The period of 6 months beginning with the day

 

30

 

it is also an incapacity case)

on which the worker discovered (or could with

 
  

reasonable diligence have discovered) the

 
  

qualifying fact.

 
 

An incapacity case (but not if

The period of 6 months beginning with the day

 
 

it is also a concealment case)

on which the worker ceased to have the

 

35

  

incapacity.

 
 

A case which is a concealment

The period of 6 months beginning with the

 
 

and incapacity case.

later of the days on which the period would

 
  

begin if the case were merely a concealment or

 
  

incapacity case.

 

40

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

81

 

(4)   

If the complaint or application relates to terms of service in the armed forces,

the qualifying period is, in a case mentioned in the first column of the table, the

period mentioned in the second column.

 

Case

Qualifying period

 
 

A standard case

The period of 9 months beginning with the last

 

5

  

day of the period of service during which the

 
  

complaint arose.

 
 

A concealment case (but not if

The period of 9 months beginning with the day

 
 

it is also an incapacity case)

on which the worker discovered (or could with

 
  

reasonable diligence have discovered) the

 

10

  

qualifying fact.

 
 

An incapacity case (but not if

The period of 9 months beginning with the day

 
 

it is also a concealment case)

on which the worker ceased to have the

 
  

incapacity.

 
 

A case which is a concealment

The period of 9 months beginning with the

 

15

 

and incapacity case.

later of the days on which the period would

 
  

begin if the case were merely a concealment or

 
  

incapacity case.

 

129     

Section 128: supplementary

(1)   

This section applies for the purposes of section 128.

20

(2)   

A standard case is a case which is not—

(a)   

a stable work case,

(b)   

a concealment case,

(c)   

an incapacity case, or

(d)   

a concealment case and an incapacity case.

25

(3)   

A stable work case is a case where the proceedings relate to a period during

which there was a stable working relationship between the worker and the

responsible person (including any time after the terms of work had expired).

(4)   

A concealment case in proceedings relating to an equality clause is a case

where—

30

(a)   

the responsible person deliberately concealed a qualifying fact from the

worker, and

(b)   

the worker did not discover (or could not with reasonable diligence

have discovered) the qualifying fact until after the relevant day.

(5)   

A concealment case in proceedings relating to an equality rule is a case

35

where—

(a)   

the employer or the trustees or managers of the occupational pension

scheme in question deliberately concealed a qualifying fact from the

member, and

(b)   

the member did not discover (or could not with reasonable diligence

40

have discovered) the qualifying fact until after the relevant day.

(6)   

A qualifying fact for the purposes of subsection (4) or (5) is a fact—

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

82

 

(a)   

which is relevant to the complaint, and

(b)   

without knowledge of which the worker or member could not

reasonably have been expected to bring the proceedings.

(7)   

An incapacity case in proceedings relating to an equality clause with respect to

terms of work other than terms of service in the armed forces is a case where

5

the worker had an incapacity during the period of 6 months beginning with the

later of—

(a)   

the relevant day, or

(b)   

the day on which the worker discovered (or could with reasonable

diligence have discovered) the qualifying fact deliberately concealed

10

from the worker by the responsible person.

(8)   

An incapacity case in proceedings relating to an equality clause with respect to

terms of service in the armed forces is a case where the worker had an

incapacity during the period of 9 months beginning with the later of—

(a)   

the last day of the period of service during which the complaint arose,

15

or

(b)   

the day on which the worker discovered (or could with reasonable

diligence have discovered) the qualifying fact deliberately concealed

from the worker by the responsible person.

(9)   

An incapacity case in proceedings relating to an equality rule is a case where

20

the member of the occupational pension scheme in question had an incapacity

during the period of 6 months beginning with the later of—

(a)   

the relevant day, or

(b)   

the day on which the member discovered (or could with reasonable

diligence have discovered) the qualifying fact deliberately concealed

25

from the member by the employer or the trustees or managers of the

scheme.

(10)   

The relevant day for the purposes of this section is—

(a)   

the last day of the employment or appointment, or

(b)   

the day on which the stable working relationship between the worker

30

and the responsible person ended.

130     

Assessment of whether work is of equal value

(1)   

This section applies to proceedings before an employment tribunal on—

(a)   

a complaint relating to a breach of an equality clause or rule, or

(b)   

a question referred to the tribunal by virtue of section 127(2).

35

(2)   

Where a question arises in the proceedings as to whether one person’s work is

of equal value to another’s, the tribunal may, before determining the question,

require a member of the panel of independent experts to prepare a report on

the question.

(3)   

The tribunal may withdraw a requirement that it makes under subsection (2);

40

and, if it does so, it may—

(a)   

request the panel member to provide it with specified documentation;

(b)   

make such other requests to that member as are connected with the

withdrawal of the requirement.

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

83

 

(4)   

If the tribunal requires the preparation of a report under subsection (2) (and

does not withdraw the requirement), it must not determine the question unless

it has received the report.

(5)   

Subsection (6) applies where—

(a)   

a question arises in the proceedings as to whether the work of one

5

person (A) is of equal value to the work of another (B), and

(b)   

A’s work and B’s work have been given different values by a job

evaluation study.

(6)   

The tribunal must determine that A’s work is not of equal value to B’s work

unless it has reasonable grounds for suspecting that the evaluation contained

10

in the study—

(a)   

was based on a system that discriminates because of sex, or

(b)   

is otherwise unreliable.

(7)   

For the purposes of subsection (6)(a), a system discriminates because of sex if a

difference (or coincidence) between values that the system sets on different

15

demands is not justifiable regardless of the sex of the person on whom the

demands are made.

(8)   

A reference to a member of the panel of independent experts is to a person—

(a)   

who is for the time being designated as such by the Advisory,

Conciliation and Arbitration Service (ACAS) for the purposes of this

20

section, and

(b)   

who is neither a member of the Council of ACAS nor one of its officers

or members of staff.

(9)   

“Job evaluation study” has the meaning given in section 80(5).

131     

Remedies in non-pensions cases

25

(1)   

This section applies to proceedings before a court or employment tribunal on

a complaint relating to a breach of an equality clause, other than a breach with

respect to membership of or rights under an occupational pension scheme.

(2)   

If the court or tribunal finds that there has been a breach of the equality clause,

it may—

30

(a)   

make a declaration as to the rights of the parties in relation to the

matters to which the proceedings relate;

(b)   

order an award by way of arrears of pay or damages in relation to the

complainant.

(3)   

The court or tribunal may not order a payment under subsection (2)(b) in

35

respect of a time before the arrears day.

(4)   

In relation to proceedings in England and Wales, the arrears day is, in a case

mentioned in the first column of the table, the day mentioned in the second

column.

 

Case

Arrears day

 

40

 

A standard case

The day falling 6 years before the day on

 
  

which the proceedings were instituted.

 
 
 

 
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