Equality Bill

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

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.
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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.

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

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Part 9 — Enforcement
Chapter 4 — Equality of terms
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(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.