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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;

15

(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.

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(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;

45

 
 

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).

40

(7)   

In relation to proceedings in Scotland, a person has an incapacity if the

person—

 
 

Equality Bill
Part 10 — Contracts, etc.

90

 

(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

40

be affected by it—

 
 

Equality Bill
Part 10 — Contracts, etc.

91

 

(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

 
 

Equality Bill
Part 10 — Contracts, etc.

92

 

(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

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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,

 

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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

 
 
 

 
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