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Equality Bill


Equality Bill
Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age

174

 

(d)   

a relevant member of the House of Lords staff.

      (3)  

Retirement is a reason for dismissal only if it is a reason for dismissal by

virtue of Part 10 of the Employment Rights Act 1996.

Applicants at or approaching retirement age

9     (1)  

A person does not contravene section 39(1)(a) or (c), so far as relating to age,

5

in a case where the other person—

(a)   

has attained the age limit, or would have attained it before the end of

six months beginning with the date on which the application for the

employment had to be made, and

(b)   

would, if recruited for the employment, be a relevant worker within

10

the meaning of paragraph 8.

      (2)  

The age limit is whichever is the greater of—

(a)   

the age of 65, and

(b)   

the normal retirement age in the case of the employment concerned.

      (3)  

The reference to the normal retirement age is to be construed in accordance

15

with section 98ZH of the Employment Rights Act 1996.

Benefits based on length of service

10    (1)  

It is not an age contravention for a person (A) to put a person (B) at a

disadvantage when compared with another (C), in relation to the provision

of a benefit, facility or service in so far as the disadvantage is because B has

20

a shorter period of service than C.

      (2)  

If B’s period of service exceeds 5 years, A may rely on sub-paragraph (1)

only if A reasonably believes that doing so fulfils a business need.

      (3)  

A person’s period of service is whichever of the following A chooses—

(a)   

the period for which the person has been working for A at or above

25

a level (assessed by reference to the demands made on the person)

that A reasonably regards as appropriate for the purposes of this

paragraph, or

(b)   

the period for which the person has been working for A at any level.

      (4)  

The period for which a person has been working for A must be based on the

30

number of weeks during the whole or part of which the person has worked

for A.

      (5)  

But for that purpose A may, so far as is reasonable, discount—

(a)   

periods of absence;

(b)   

periods that A reasonably regards as related to periods of absence.

35

      (6)  

For the purposes of sub-paragraph (3)(b), a person is to be treated as having

worked for A during any period in which the person worked for a person

other than A if—

(a)   

that period counts as a period of employment with A as a result of

section 218 of the Employment Rights Act 1996, or

40

(b)   

if sub-paragraph (a) does not apply, that period is treated as a period

of employment by an enactment pursuant to which the person’s

employment was transferred to A.

 
 

Equality Bill
Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age

175

 

      (7)  

For the purposes of this paragraph, the reference to a benefit, facility or

service does not include a reference to a benefit, facility or service which may

be provided only by virtue of a person’s ceasing to work.

The national minimum wage: young workers

11    (1)  

It is not an age contravention for a person to pay a young worker (A) at a

5

lower rate than that at which the person pays an older worker (B) if—

(a)   

the hourly rate for the national minimum wage for a person of A’s

age is lower than that for a person of B’s age, and

(b)   

the rate at which A is paid is below the single hourly rate.

      (2)  

A young worker is a person who qualifies for the national minimum wage

10

at a lower rate than the single hourly rate; and an older worker is a person

who qualifies for the national minimum wage at a higher rate than that at

which the young worker qualifies for it.

      (3)  

The single hourly rate is the rate prescribed under section 1(3) of the

National Minimum Wage Act 1998.

15

The national minimum wage: apprentices

12    (1)  

It is not an age contravention for a person to pay an apprentice who does not

qualify for the national minimum wage at a lower rate than the person pays

an apprentice who does.

      (2)  

An apprentice is a person who—

20

(a)   

is employed under a contract of apprenticeship, or

(b)   

as a result of provision made by virtue of section 3(2)(a) of the

National Minimum Wage Act 1998 (persons not qualifying), is

treated as employed under a contract of apprenticeship.

Redundancy

25

13    (1)  

It is not an age contravention for a person to give a qualifying employee an

enhanced redundancy payment of an amount less than that of an enhanced

redundancy payment which the person gives to another qualifying

employee, if each amount is calculated on the same basis.

      (2)  

It is not an age contravention to give enhanced redundancy payments only

30

to those who are qualifying employees by virtue of sub-paragraph (3)(a) or

(b).

      (3)  

A person is a qualifying employee if the person—

(a)   

is entitled to a redundancy payment as a result of section 135 of the

Employment Rights Act 1996,

35

(b)   

agrees to the termination of the employment in circumstances where

the person would, if dismissed, have been so entitled,

(c)   

would have been so entitled but for section 155 of that Act

(requirement for two years’ continuous employment), or

(d)   

agrees to the termination of the employment in circumstances where

40

the person would, if dismissed, have been so entitled but for that

section.

 
 

Equality Bill
Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age

176

 

      (4)  

An enhanced redundancy payment is a payment the amount of which is,

subject to sub-paragraphs (5) and (6), calculated in accordance with section

162(1) to (3) of the Employment Rights Act 1996.

      (5)  

A person making a calculation for the purposes of sub-paragraph (4)—

(a)   

may treat a week’s pay as not being subject to a maximum amount;

5

(b)   

may treat a week’s pay as being subject to a maximum amount above

that for the time being specified in section 227(1) of the Employment

Rights Act 1996;

(c)   

may multiply the appropriate amount for each year of employment

by a figure of more than one.

10

      (6)  

Having made a calculation for the purposes of sub-paragraph (4) (whether

or not in reliance on sub-paragraph (5)), a person may multiply the amount

calculated by a figure of more than one.

      (7)  

In sub-paragraph (5), “the appropriate amount” has the meaning given in

section 162 of the Employment Rights Act 1996, and “a week’s pay” is to be

15

read with Chapter 2 of Part 14 of that Act.

      (8)  

For the purposes of sub-paragraphs (4) to (6), the reference to “the relevant

date” in subsection (1)(a) of section 162 of that Act is, in the case of a person

who is a qualifying employee by virtue of sub-paragraph (3)(b) or (d), to be

read as reference to the date of the termination of the employment.

20

Life assurance

14    (1)  

This paragraph applies if a person (A) takes early retirement because of ill

health.

      (2)  

It is not an age contravention to provide A with life assurance cover for the

period starting when A retires and ending—

25

(a)   

if there is a normal retirement age, when A attains the normal

retirement age;

(b)   

in any other case, when A attains the age of 65.

      (3)  

The normal retirement age in relation to A is the age at which, when A

retires, persons holding comparable positions in the same undertaking are

30

normally required to retire.

Child care

15    (1)  

A person does not contravene a relevant provision, so far as relating to age,

only by providing, or making arrangements for or facilitating the provision

of, care for children of a particular age group.

35

      (2)  

The relevant provisions are—

(a)   

section 39(2)(b);

(b)   

section 41(1)(c);

(c)   

section 44(2)(b);

(d)   

section 45(2)(b);

40

(e)   

section 47(2)(b);

(f)   

section 48(2)(b);

(g)   

section 49(6)(b);

(h)   

section 50(6)(b);

 
 

Equality Bill
Schedule 9 — Work: exceptions
Part 3 — Other exceptions

177

 

(i)   

section 57(2)(a);

(j)   

section 58(3)(a).

      (3)  

Facilitating the provision of care for a child includes—

(a)   

paying for some or all of the cost of the provision;

(b)   

helping a parent of the child to find a suitable person to provide care

5

for the child;

(c)   

enabling a parent of the child to spend more time providing care for

the child or otherwise assisting the parent with respect to the care

that the parent provides for the child.

      (4)  

A child is a person who has not attained the age of 17.

10

      (5)  

A reference to care includes a reference to supervision.

Contributions to personal pension schemes

16    (1)  

A Minister of the Crown may by order provide that it is not an age

contravention for an employer to maintain or use, with respect to

contributions to personal pension schemes, practices, actions or decisions

15

relating to age which are of a specified description.

      (2)  

An order authorising the use of practices, actions or decisions which are not

in use before the order comes into force must not be made unless the

Minister consults such persons as the Minister thinks appropriate.

      (3)  

“Personal pension scheme” has the meaning given in section 1 of the Pension

20

Schemes Act 1993; and “employer”, in relation to a personal pension scheme,

has the meaning given in section 318(1) of the Pensions Act 2004.

Part 3

Other exceptions

Non-contractual payments to women on maternity leave

25

17    (1)  

A person does not contravene section 39(1)(b) or (2), so far as relating to

pregnancy and maternity, by depriving a woman who is on maternity leave

of any benefit from the terms of her employment relating to pay.

      (2)  

The reference in sub-paragraph (1) to benefit from the terms of a woman’s

employment relating to pay does not include a reference to—

30

(a)   

maternity-related pay (including maternity-related pay that is

increase-related),

(b)   

pay (including increase-related pay) in respect of times when she is

not on maternity leave, or

(c)   

pay by way of bonus in respect of times when she is on compulsory

35

maternity leave.

      (3)  

For the purposes of sub-paragraph (2), pay is increase-related in so far as it

is to be calculated by reference to increases in pay that the woman would

have received had she not been on maternity leave.

      (4)  

A reference to terms of her employment is a reference to terms of her

40

employment that are not in her contract of employment, her contract of

apprenticeship or her contract to do work personally.

 
 

Equality Bill
Schedule 9 — Work: exceptions
Part 3 — Other exceptions

178

 

      (5)  

“Pay” means benefits—

(a)   

that consist of the payment of money to an employee by way of

wages or salary, and

(b)   

that are not benefits whose provision is regulated by the contract

referred to in sub-paragraph (4).

5

      (6)  

“Maternity-related pay” means pay to which a woman is entitled—

(a)   

as a result of being pregnant, or

(b)   

in respect of times when she is on maternity leave.

Benefits dependent on marital status, etc.

18    (1)  

A person does not contravene this Part of this Act, so far as relating to sexual

10

orientation, by doing anything which prevents or restricts a person who is

not married from having access to a benefit, facility or service—

(a)   

the right to which accrued before 5 December 2005 (the day on which

section 1 of the Civil Partnership Act 2004 came into force), or

(b)   

which is payable in respect of periods of service before that date.

15

      (2)  

A person does not contravene this Part of this Act, so far as relating to sexual

orientation, by providing married persons and civil partners (to the

exclusion of all other persons) with access to a benefit, facility or service.

Provision of services etc. to the public

19    (1)  

A does not contravene a provision mentioned in sub-paragraph (2) in

20

relation to the provision of a benefit, facility or service to B if A is concerned

with the provision (for payment or not) of a benefit, facility or service of the

same description to the public.

      (2)  

The provisions are—

(a)   

section 39(2) and (4);

25

(b)   

section 41(1) and (3);

(c)   

sections 44(2) and (6) and 45(2) and (6);

(d)   

sections 49(6) and (8) and 50(6), (7), (9) and (10).

      (3)  

Sub-paragraph (1) does not apply if—

(a)   

the provision by A to the public differs in a material respect from the

30

provision by A to comparable persons,

(b)   

the provision to B is regulated by B’s terms, or

(c)   

the benefit, facility or service relates to training.

      (4)  

“Comparable persons” means—

(a)   

in relation to section 39(2) or (4), the other employees;

35

(b)   

in relation to section 41(1) or (3), the other contract workers supplied

to the principal;

(c)   

in relation to section 44(2) or (6), the other partners of the firm;

(d)   

in relation to section 45(2) or (6), the other members of the LLP;

(e)   

in relation to section 49(6) or (8) or 50(6), (7), (9) or (10), persons

40

holding offices or posts not materially different from that held by B.

      (5)  

“B’s terms” means—

(a)   

the terms of B’s employment,

(b)   

the terms on which the principal allows B to do the contract work,

 
 

Equality Bill
Schedule 10 — Accessibility for disabled pupils

179

 

(c)   

the terms on which B has the position as a partner or member, or

(d)   

the terms of B’s appointment to the office.

      (6)  

A reference to the public includes a reference to a section of the public which

includes B.

Insurance contracts, etc.

5

20    (1)  

It is not a contravention of this Part, so far as relating to relevant

discrimination, to do anything in relation to an annuity, life insurance

policy, accident insurance policy or similar matter involving the assessment

of risk if—

(a)   

the thing is done by reference to actuarial or other data from a source

10

on which it is reasonable to rely, and

(b)   

it is reasonable to do the thing.

      (2)  

“Relevant discrimination” is—

(a)   

gender reassignment discrimination;

(b)   

marriage and civil partnership discrimination;

15

(c)   

pregnancy and maternity discrimination;

(d)   

sex discrimination.

Schedule 10

Section 88

 

Accessibility for disabled pupils

Accessibility strategies

20

1     (1)  

A local authority in England and Wales must, in relation to schools for which

it is the responsible body, prepare—

(a)   

an accessibility strategy;

(b)   

further such strategies at such times as may be prescribed.

      (2)  

An accessibility strategy is a strategy for, over a prescribed period—

25

(a)   

increasing the extent to which disabled pupils can participate in the

schools’ curriculums;

(b)   

improving the physical environment of the schools for the purpose

of increasing the extent to which disabled pupils are able to take

advantage of education and benefits, facilities or services provided

30

or offered by the schools;

(c)   

improving the delivery to disabled pupils of information which is

readily accessible to pupils who are not disabled.

      (3)  

The delivery in sub-paragraph (2)(c) must be—

(a)   

within a reasonable time;

35

(b)   

in ways which are determined after taking account of the pupils’

disabilities and any preferences expressed by them or their parents.

      (4)  

An accessibility strategy must be in writing.

      (5)  

A local authority must keep its accessibility strategy under review during

the period to which it relates and, if necessary, revise it.

40

 
 

Equality Bill
Schedule 10 — Accessibility for disabled pupils

180

 

      (6)  

A local authority must implement its accessibility strategy.

2     (1)  

In preparing its accessibility strategy, a local authority must have regard

to—

(a)   

the need to allocate adequate resources for implementing the

strategy;

5

(b)   

guidance as to the matters mentioned in sub-paragraph (3).

      (2)  

The authority must also have regard to guidance as to compliance with

paragraph 1(5).

      (3)  

The matters are—

(a)   

the content of an accessibility strategy;

10

(b)   

the form in which it is to be produced;

(c)   

persons to be consulted in its preparation.

      (4)  

Guidance may be issued—

(a)   

for England, by a Minister of the Crown;

(b)   

for Wales, by the Welsh Ministers.

15

      (5)  

A local authority must, if asked, make a copy of its accessibility strategy

available for inspection at such reasonable times as it decides.

      (6)  

A local authority in England must, if asked by a Minister of the Crown, give

the Minister a copy of its accessibility strategy.

      (7)  

A local authority in Wales must, if asked by the Welsh Ministers, give them

20

a copy of its accessibility strategy.

Accessibility plans

3     (1)  

The responsible body of a school in England and Wales must prepare—

(a)   

an accessibility plan;

(b)   

further such plans at such times as may be prescribed.

25

      (2)  

An accessibility plan is a plan for, over a prescribed period—

(a)   

increasing the extent to which disabled pupils can participate in the

school’s curriculum,

(b)   

improving the physical environment of the school for the purpose of

increasing the extent to which disabled pupils are able to take

30

advantage of education and benefits, facilities or services provided

or offered by the school, and

(c)   

improving the delivery to disabled pupils of information which is

readily accessible to pupils who are not disabled.

      (3)  

The delivery in sub-paragraph (2)(c) must be—

35

(a)   

within a reasonable time;

(b)   

in ways which are determined after taking account of the pupils’

disabilities and any preferences expressed by them or their parents.

      (4)  

An accessibility plan must be in writing.

      (5)  

The responsible body must keep its accessibility plan under review during

40

the period to which it relates and, if necessary, revise it.

      (6)  

The responsible body must implement its accessibility plan.

 
 

 
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