Equality Bill

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
84

Case
Arrears day

A concealment case or an
The day on which the breach first

incapacity case (or a case
occurred.

which is both).

(5)
In relation to proceedings in Scotland, the arrears day is the first day of—
5
(a)
the period of 5 years ending with the day on which the proceedings
were commenced, or
(b)
if the case involves a relevant incapacity, or a relevant fraud or error,
the period of 20 years ending with that day.
132
Remedies in pensions cases
10
(1)
This section applies to proceedings before a court or employment tribunal on
a complaint relating to—
(a)
a breach of an equality rule, or
(b)
a breach of an equality clause with respect to membership of, or rights
under, an occupational pension scheme.
15
(2)
If the court or tribunal finds that there has been a breach as referred to in
subsection (1)—
(a)
it may make a declaration as to the rights of the parties in relation to the
matters to which the proceedings relate;
(b)
it must not order arrears of benefits or damages or any other amount to
20
be paid to the complainant.
(3)
Subsection (2)(b) does not apply if the proceedings are proceedings to which
section 133 applies.
(4)
If the breach relates to a term on which persons become members of the
scheme, the court or tribunal may declare that the complainant is entitled to be
25
admitted to the scheme with effect from a specified date.
(5)
A date specified for the purposes of subsection (4) must not be before 8 April
1976.
(6)
If the breach relates to a term on which members of the scheme are treated, the
court or tribunal may declare that the complainant is, in respect of a specified
30
period, entitled to secure the rights that would have accrued if the breach had
not occurred.
(7)
A period specified for the purposes of subsection (6) must not begin before 17
May 1990.
(8)
If the court or tribunal makes a declaration under subsection (6), the employer
35
must provide such resources to the scheme as are necessary to secure for the
complainant (without contribution or further contribution by the complainant
or other members) the rights referred to in that subsection.
133
Remedies in claims for arrears brought by pensioner members
(1)
This section applies to proceedings before a court or employment tribunal on
40
a complaint by a pensioner member of an occupational pension scheme

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
85

relating to a breach of an equality clause or rule with respect to a term on which
the member is treated.
(2)
If the court or tribunal finds that there has been a breach referred to in
subsection (1), it may—
(a)
make a declaration as to the rights of the complainant and the
5
respondent in relation to the matters to which the proceedings relate;
(b)
order an award by way of arrears of benefits or damages or of any other
amount in relation to the complainant.
(3)
The court or tribunal must not order an award under subsection (2)(b) in
respect of a time before the arrears day.
10
(4)
If the court or tribunal orders an award under subsection (2)(b), the employer
must provide such resources to the scheme as are necessary to secure for the
complainant (without contribution or further contribution by the complainant
or other members) the amount of the award.
(5)
In relation to proceedings in England and Wales, the arrears day is, in a case
15
mentioned in the first column of the table, the day mentioned in the second
column.

Case
Arrears day

A standard case
The day falling 6 years before the day on

which the proceedings were commenced.

20

A concealment case or an
The day on which the breach first

incapacity case (or a case
occurred.

which is both).

(6)
In relation to proceedings in Scotland, the arrears day is the first day of—
(a)
the period of 5 years ending with the day on which the proceedings
25
were commenced, or
(b)
if the case involves a relevant incapacity, or a relevant fraud or error,
the period of 20 years ending with that day.
134
Supplementary
(1)
This section applies for the purposes of sections 131 to 133.
30
(2)
A standard case is a case which is not—
(a)
a concealment case,
(b)
an incapacity case, or
(c)
a concealment case and an incapacity case.
(3)
A concealment case in relation to an equality clause is a case where—
35
(a)
the responsible person deliberately concealed a qualifying fact (as
defined by section 129) from the worker, and
(b)
the worker commenced the proceedings before the end of the period of
6 years beginning with the day on which the worker discovered (or
could with reasonable diligence have discovered) the qualifying fact.
40
(4)
A concealment case in relation to an equality rule is a case where—

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms
86

(a)
the employer or the trustees or managers of the occupational pension
scheme in question deliberately concealed a qualifying fact (as defined
by section 129) from the member, and
(b)
the member commenced the proceedings before the end of the period
of 6 years beginning with the day on which the member discovered (or
5
could with reasonable diligence have discovered) the qualifying fact.
(5)
An incapacity case is a case where the worker or member—
(a)
had an incapacity when the breach first occurred, and
(b)
commenced the proceedings before the end of the period of 6 years
beginning with the day on which the worker or member ceased to have
10
the incapacity.
(6)
A case involves a relevant incapacity or a relevant fraud or error if the period
of 5 years referred to in section 131(5)(a) is, as a result of subsection (7) below,
reckoned as a period of more than 20 years.
(7)
For the purposes of the reckoning referred to in subsection (6), no account is to
15
be taken of time when the worker or member—
(a)
had an incapacity, or
(b)
was induced by a relevant fraud or error to refrain from commencing
proceedings (not being a time after the worker or member could with
reasonable diligence have discovered the fraud or error).
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(8)
For the purposes of subsection (7)—
(a)
a fraud is relevant in relation to an equality clause if it is a fraud on the
part of the responsible person;
(b)
an error is relevant in relation to an equality clause if it is induced by
the words or conduct of the responsible person;
25
(c)
a fraud is relevant in relation to an equality rule if it is a fraud on the
part of the employer or the trustees or managers of the scheme;
(d)
an error is relevant in relation to an equality rule if it is induced by the
words or conduct of the employer or the trustees or managers of the
scheme.
30
(9)
A reference in subsection (8) to the responsible person, the employer or the
trustees or managers includes a reference to a person acting on behalf of the
person or persons concerned.
(10)
In relation to terms of service, a reference in section 131(5) or subsection (3) or
(5)(b) of this section to commencing proceedings is a reference to making a
35
service complaint.
(11)
A reference to a pensioner member of a scheme includes a reference to a person
who is entitled to the present payment of pension or other benefits derived
through a member.
(12)
In relation to proceedings before a court—
40
(a)
a reference to a complaint is to be read as a reference to a claim, and
(b)
a reference to a complainant is to be read as a reference to a claimant.

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous
87

Chapter 5
Miscellaneous
135
Burden of proof
(1)
This section applies to any proceedings relating to a contravention of this Act.
(2)
If there are facts from which the court could decide, in the absence of any other
5
explanation, that a person (A) contravened the provision concerned, the court
must hold that the contravention occurred.
(3)
But subsection (2) does not apply if A shows that A did not contravene the
provision.
(4)
The reference to a contravention of this Act includes a reference to a breach of
10
an equality clause or rule.
(5)
This section does not apply to proceedings for an offence under this Act.
(6)
A reference to the court includes a reference to—
(a)
an employment tribunal;
(b)
the Asylum and Immigration Tribunal;
15
(c)
the Special Immigration Appeals Commission;
(d)
the First-tier Tribunal;
(e)
the Special Educational Needs Tribunal for Wales;
(f)
an Additional Support Needs Tribunal for Scotland.
136
Previous findings
20
(1)
A finding in relevant proceedings in respect of an act which has become final
is to be treated as conclusive in proceedings under this Act.
(2)
Relevant proceedings are proceedings before a court or employment tribunal
under any of the following—
(a)
section 19 or 20 of the Race Relations Act 1968 (c. 71);
25
(b)
the Equal Pay Act 1970 (c. 41);
(c)
the Sex Discrimination Act 1975 (c. 65);
(d)
the Race Relations Act 1976 (c. 74);
(e)
section 6(4A) of the Sex Discrimination Act 1986 (c. 59);
(f)
the Disability Discrimination Act 1995 (c. 50);
30
(g)
Part 2 of the Equality Act 2006 (c. 3);
(h)
the Employment Equality (Religion and Belief) Regulations 2003 (S.I.
2003/1660);
(i)
the Employment Equality (Sexual Orientation) Regulations 2003 (S.I.
2003/1661);
35
(j)
the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031);
(k)
the Equality Act (Sexual Orientation) Regulations 2007 (S.I. 2007/1263).
(3)
A finding becomes final—
(a)
when an appeal against the finding is dismissed, withdrawn or
abandoned, or
40
(b)
when the time for appealing expires without an appeal having been
brought.