Equality Bill

House of Lords

Session 2009 - 10
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Other Bills before Parliament

Equality Bill

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous
88

137
Obtaining information, etc.
(1)
In this section—
(a)
P is a person who thinks that a contravention of this Act has occurred
in relation to P;
(b)
R is a person who P thinks has contravened this Act.
5
(2)
A Minister of the Crown must by order prescribe—
(a)
forms by which P may question R on any matter which is or may be
relevant;
(b)
forms by which R may answer questions by P.
(3)
A question by P or an answer by R is admissible as evidence in proceedings
10
under this Act (whether or not the question or answer is contained in a
prescribed form).
(4)
A court or tribunal may draw an inference from—
(a)
a failure by R to answer a question by P before the end of the period of
8 weeks beginning with the day on which the question is served;
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(b)
an evasive or equivocal answer.
(5)
Subsection (4) does not apply if—
(a)
R reasonably asserts that to have answered differently or at all might
have prejudiced a criminal matter;
(b)
R reasonably asserts that to have answered differently or at all would
20
have revealed the reason for not commencing or not continuing
criminal proceedings;
(c)
R’s answer is of a kind specified for the purposes of this paragraph by
order of a Minister of the Crown;
(d)
R’s answer is given in circumstances specified for the purposes of this
25
paragraph by order of a Minister of the Crown;
(e)
R’s failure to answer occurs in circumstances specified for the purposes
of this paragraph by order of a Minister of the Crown.
(6)
The reference to a contravention of this Act includes a reference to a breach of
an equality clause or rule.
30
(7)
A Minister of the Crown may by order—
(a)
prescribe the period within which a question must be served to be
admissible under subsection (3);
(b)
prescribe the manner in which a question by P, or an answer by R, may
be served.
35
(8)
This section—
(a)
does not affect any other enactment or rule of law relating to interim or
preliminary matters in proceedings before a county court, the sheriff or
an employment tribunal, and
(b)
has effect subject to any enactment or rule of law regulating the
40
admissibility of evidence in such proceedings.
138
Interest
(1)
Regulations may make provision—
(a)
for enabling an employment tribunal to include interest on an amount
awarded by it in proceedings under this Act;
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Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous
89

(b)
specifying the manner in which, and the periods and rate by reference
to which, the interest is to be determined.
(2)
Regulations may modify the operation of an order made under section 14 of the
Employment Tribunals Act 1996 (power to make provision as to interest on
awards) in so far as it relates to an award in proceedings under this Act.
5
139
Conduct giving rise to separate proceedings
(1)
This section applies in relation to conduct which has given rise to two or more
separate proceedings under this Act, with at least one being for a contravention
of section 110 (instructing, causing or inducing discrimination).
(2)
A court may transfer proceedings to an employment tribunal.
10
(3)
An employment tribunal may transfer proceedings to a court.
(4)
A court or employment tribunal is to be taken for the purposes of this Part to
have jurisdiction to determine a claim or complaint transferred to it under this
section; accordingly—
(a)
a reference to a claim within section 113(1) includes a reference to a
15
claim transferred to a court under this section, and
(b)
a reference to a complaint within section 119(1) includes a reference to
a complaint transferred to an employment tribunal under this section.
(5)
A court or employment tribunal may not make a decision that is inconsistent
with an earlier decision in proceedings arising out of the conduct.
20
(6)
“Court” means—
(a)
in relation to proceedings in England and Wales, a county court;
(b)
in relation to proceedings in Scotland, the sheriff.
140
Interpretation, etc.
(1)
This section applies for the purposes of this Part.
25
(2)
A reference to the responsible person, in relation to an equality clause or rule,
is to be construed in accordance with Chapter 3 of Part 5.
(3)
A reference to a worker is a reference to the person to the terms of whose work
the proceedings in question relate; and, for the purposes of proceedings
relating to an equality rule or a non-discrimination rule, a reference to a worker
30
includes a reference to a member of the occupational pension scheme in
question.
(4)
A reference to the terms of a person’s work is to be construed in accordance
with Chapter 3 of Part 5.
(5)
A reference to a member of an occupational pension scheme includes a
35
reference to a prospective member.
(6)
In relation to proceedings in England and Wales, a person has an incapacity if
the person—
(a)
has not attained the age of 18, or
(b)
lacks capacity (within the meaning of the Mental Capacity Act 2005).
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(7)
In relation to proceedings in Scotland, a person has an incapacity if the
person—

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Part 10 — Contracts, etc.
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(a)
has not attained the age of 16, or
(b)
is incapable (within the meaning of the Adults with Incapacity
(Scotland) Act 2000).
(8)
“Service complaint” means a complaint under section 334 of the Armed Forces
Act 2006 (c. 52); and “service complaint procedures” means the procedures
5
prescribed by regulations under that section (except in so far as relating to
references under section 337 of that Act)
(9)
“Criminal matter” means—
(a)
an investigation into the commission of an alleged offence;
(b)
a decision whether to commence criminal proceedings;
10
(c)
criminal proceedings.
Part 10
Contracts, etc.
Contracts and other agreements
141
Unenforceable terms
15
(1)
A term of a contract is unenforceable against a person in so far as it constitutes,
promotes or provides for treatment of that or another person that is of a
description prohibited by this Act.
(2)
A relevant non-contractual term is unenforceable against a person in so far as
it constitutes, promotes or provides for treatment of that or another person that
20
is of a description prohibited by this Act, in so far as this Act relates to
disability.
(3)
A relevant non-contractual term is a term which—
(a)
is a term of an agreement that is not a contract, and
(b)
relates to the provision of an employment service within section
25
56(2)(a) to (e) or to the provision under a group insurance arrangement
of facilities by way of insurance.
(4)
A reference in subsection (1) or (2) to treatment of a description prohibited by
this Act does not include—
(a)
a reference to the inclusion of a term in a contract referred to in section
30
70(2)(a) or 76(2), or
(b)
a reference to the failure to include a term in a contract as referred to in
section 70(2)(b).
(5)
Subsection (4) does not affect the application of section 147(2) to this section.
142
Removal or modification of unenforceable terms
35
(1)
A county court or the sheriff may, on an application by a person who has an
interest in a contract, or other agreement, which includes a term that is
unenforceable as a result of section 141, make an order for the term to be
removed or modified.
(2)
An order under this section must not be made unless every person who would
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be affected by it—

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(a)
has been given notice of the application (except where notice is
dispensed with in accordance with rules of court), and
(b)
has been afforded an opportunity to make representations to the
county court or sheriff.
(3)
An order under this section may include provision in respect of a period before
5
the making of the order.
143
Contracting out
(1)
A term of a contract is unenforceable by a person in whose favour it would
operate in so far as it purports to exclude or limit a provision of or made under
this Act.
10
(2)
A relevant non-contractual term (as defined by section 141) is unenforceable by
a person in whose favour it would operate in so far as it purports to exclude or
limit a provision of or made under this Act, in so far as the provision relates to
disability.
(3)
This section does not apply to a contract which settles a claim within section
15
113.
(4)
This section does not apply to a contract which settles a complaint within
section 119 if the contract—
(a)
is made with the assistance of a conciliation officer, or
(b)
is a qualifying compromise contract.
20
(5)
A contract within subsection (4) includes a contract which settles a complaint
relating to a breach of an equality clause or rule or of a non-discrimination rule.
(6)
A contract within subsection (4) includes an agreement by the parties to a
dispute to submit the dispute to arbitration if—
(a)
the dispute is covered by a scheme having effect by virtue of an order
25
under section 212A of the Trade Union and Labour Relations
(Consolidation) Act 1992, and
(b)
the agreement is to submit the dispute to arbitration in accordance with
the scheme.
Collective agreements and rules of undertakings
30
144
Void and unenforceable terms
(1)
A term of a collective agreement is void in so far as it constitutes, promotes or
provides for treatment of a description prohibited by this Act.
(2)
A rule of an undertaking is unenforceable against a person in so far as it
constitutes, promotes or provides for treatment of the person that is of a
35
description prohibited by this Act.
145
Declaration in respect of void term, etc.
(1)
A qualifying person (P) may make a complaint to an employment tribunal that
a term is void, or a rule is unenforceable, as a result of section 144.
(2)
But subsection (1) applies only if—
40
(a)
the term or rule may in the future have effect in relation to P, and

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Part 10 — Contracts, etc.
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(b)
where the complaint alleges that the term or rule provides for treatment
of a description prohibited by this Act, P may in the future be subjected
to treatment that would (if P were subjected to it in present
circumstances) be of that description.
(3)
If the tribunal finds that the complaint is well-founded, it must make an order
5
declaring that the term is void or the rule is unenforceable.
(4)
An order under this section may include provision in respect of a period before
the making of the order.
(5)
In the case of a complaint about a term of a collective agreement, where the
term is one made by or on behalf of a person of a description specified in the
10
first column of the table, a qualifying person is a person of a description
specified in the second column.

Description of person who
Qualifying person

made collective agreement

Employer
A person who is, or is seeking to be,

15

an employee of that employer

Organisation of employers
A person who is, or is seeking to be,

an employee of an employer who is a

member of that organisation

Association of organisations
A person who is, or is seeking to be,

20

of employers
an employee of an employer who is a

member of an organisation in that

association

(6)
In the case of a complaint about a rule of an undertaking, where the rule is one
made by or on behalf of a person of a description specified in the first column
25
of the table, a qualifying person is a person of a description specified in the
second column.

Description of person who
Qualifying person

made rule of undertaking

Employer
A person who is, or is seeking to be,

30

an employee of that employer

Trade organisation or
A person who is, or is seeking to be, a

qualifications body
member of the organisation or body

A person on whom the body has

conferred a relevant qualification

35

A person seeking conferment by the

body of a relevant qualification