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Equality Bill


Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

73

 

Chapter 2

Civil courts

114     

Jurisdiction

(1)   

A county court or, in Scotland, the sheriff has jurisdiction to determine a claim

relating to—

5

(a)   

a contravention of Part 3 (services and public functions);

(b)   

a contravention of Part 4 (premises);

(c)   

a contravention of Part 6 (education);

(d)   

a contravention of Part 7 (associations);

(e)   

a contravention of section 108, 111 or 112 that relates to Part 3, 4, 6 or 7.

10

(2)   

Subsection (1)(a) does not apply to a claim within section 115.

(3)   

Subsection (1)(c) does not apply to a claim within section 116.

(4)   

Subsection (1)(d) does not apply to a contravention of section 106.

(5)   

For the purposes of proceedings on a claim within subsection (1)(a)—

(a)   

a decision in proceedings on a claim mentioned in section 115(1) that an

15

act is a contravention of Part 3 is binding;

(b)   

it does not matter whether the act occurs outside the United Kingdom.

(6)   

The county court or sheriff—

(a)   

must not grant an interim injunction or interdict unless satisfied that no

criminal matter would be prejudiced by doing so;

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(b)   

must grant an application to stay or sist proceedings under subsection

(1) on grounds of prejudice to a criminal matter unless satisfied the

matter will not be prejudiced.

(7)   

In proceedings in England and Wales on a claim within subsection (1), the

power under section 63(1) of the County Courts Act 1984 (appointment of

25

assessors) must be exercised unless the judge is satisfied that there are good

reasons for not doing so.

(8)   

In proceedings in Scotland on a claim within subsection (1), the power under

rule 44.3 of Schedule 1 to the Sheriff Court (Scotland) Act 1907 (appointment of

assessors) must be exercised unless the sheriff is satisfied that there are good

30

reasons for not doing so.

(9)   

The remuneration of an assessor appointed by virtue of subsection (8) is to be

at a rate determined by the Lord President of the Court of Session.

115     

Immigration cases

(1)   

A claim is within this section if it relates to the act of an immigration authority

35

in taking a relevant decision and—

(a)   

the question whether the act is a contravention of Part 3 has been or

could be raised on an appeal which is pending, or could be brought,

under the immigration provisions, or

(b)   

it has been decided on an appeal under those provisions that the act is

40

not a contravention of Part 3.

(2)   

The relevant decision is not—

 
 

Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

74

 

(a)   

subject to challenge in proceedings on a claim within section 114(1)(a),

or

(b)   

affected by the decision of a court in such proceedings.

(3)   

For the purposes of subsection (1)(a) a power to grant permission to appeal out

of time must be ignored.

5

(4)   

Each of the following is an immigration authority—

(a)   

the Secretary of State;

(b)   

an immigration officer;

(c)   

a person responsible for the grant or refusal of entry clearance (within

the meaning of section 33(1) of the Immigration Act 1971).

10

(5)   

The immigration provisions are—

(a)   

the Special Immigration Appeals Commission Act 1997, or

(b)   

Part 5 of the Nationality, Immigration and Asylum Act 2002.

(6)   

A relevant decision is—

(a)   

a decision under the Immigration Acts relating to the entitlement of a

15

person to enter or remain in the United Kingdom;

(b)   

a decision on an appeal under the immigration provisions relating to a

decision within paragraph (a).

(7)   

An appeal is pending if it is pending for the purposes of section 104 of the

Nationality, Immigration and Asylum Act 2002 or (as the case may be) for the

20

purposes of that section as it is applied by section 2(2)(j) of the Special

Immigration Appeals Commission Act 1997.

116     

Education cases

(1)   

A claim is within this section if it may be made to—

(a)   

the First-tier Tribunal in accordance with Part 2 of Schedule 17,

25

(b)   

the Special Educational Needs Tribunal for Wales in accordance with

Part 2 of that Schedule, or

(c)   

an Additional Support Needs Tribunal for Scotland in accordance with

Part 3 of that Schedule.

(2)   

A claim is also within this section if it must be made in accordance with appeal

30

arrangements within the meaning of Part 4 of that Schedule.

(3)   

Schedule 17 (disabled pupils: enforcement) has effect.

117     

National security

(1)   

Rules of court may, in relation to proceedings on a claim within section 114,

confer power as mentioned in subsections (2) to (4); but a power so conferred

35

is exercisable only if the court thinks it expedient to do so in the interests of

national security.

(2)   

The rules may confer power to exclude from all or part of the proceedings—

(a)   

the claimant or pursuer;

(b)   

a representative of the claimant or pursuer;

40

(c)   

an assessor.

 
 

Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

75

 

(3)   

The rules may confer power to permit a claimant, pursuer or representative

who has been excluded to make a statement to the court before the

commencement of the proceedings, or part of the proceedings, to which the

exclusion relates.

(4)   

The rules may confer power to take steps to keep secret all or part of the

5

reasons for the court’s decision.

(5)   

The Attorney General or, in Scotland, the Advocate General for Scotland may

appoint a person to represent the interests of a claimant or pursuer in, or in any

part of, proceedings to which an exclusion by virtue of subsection (2)(a) or (b)

relates.

10

(6)   

A person (P) may be appointed under subsection (5) only if—

(a)   

in relation to proceedings in England and Wales, P is a person who, for

the purposes of the Legal Services Act 2007, is an authorised person in

relation to an activity which constitutes the exercise of a right of

audience or the conduct of litigation;

15

(b)   

in relation to proceedings in Scotland, P is an advocate or qualified to

practice as a solicitor in Scotland.

(7)   

P is not responsible to the person whose interests P is appointed to represent.

118     

Time limits

(1)   

Proceedings on a claim within section 114 may not be brought after the end

20

of—

(a)   

the period of 6 months starting with the date of the act to which the

claim relates, or

(b)   

such other period as the county court or sheriff thinks just and

equitable.

25

(2)   

If subsection (3) or (4) applies, subsection (1)(a) has effect as if for “6 months”

there were substituted “9 months”.

(3)   

This subsection applies if—

(a)   

the claim relates to the act of a qualifying institution, and

(b)   

a complaint relating to the act is referred under the student complaints

30

scheme before the end of the period of 6 months starting with the date

of the act.

(4)   

This subsection applies if—

(a)   

the claim relates to a dispute referred for conciliation in pursuance of

arrangements under section 27 of the Equality Act 2006, and

35

(b)   

subsection (3) does not apply.

(5)   

If it has been decided under the immigration provisions that the act of an

immigration authority in taking a relevant decision is a contravention of Part 3

(services and public functions), subsection (1) has effect as if for paragraph (a)

there were substituted—

40

“(a)   

the period of 6 months starting with the day after the expiry of

the period during which, as a result of section 114(2),

proceedings could not be brought in reliance on section

114(1)(a);”.

(6)   

For the purposes of this section—

45

 
 

Equality Bill
Part 9 — Enforcement
Chapter 2 — Civil courts

76

 

(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

question decided on it.

(7)   

In the absence of evidence to the contrary, a person (P) is to be taken to decide

5

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

might reasonably have been expected to do the thing.

(8)   

In this section—

10

“immigration authority”, “immigration provisions” and “relevant

decision” each have the meaning given in section 115;

“qualifying institution” has the meaning given in section 11 of the Higher

Education Act 2004;

“the student complaints scheme” means a scheme for the review of

15

qualifying complaints (within the meaning of section 12 of that Act)

that is provided by the designated operator (within the meaning of

section 13(5)(b) of that Act).

119     

Remedies

(1)   

This section applies if a county court or the sheriff finds that there has been a

20

contravention of a provision referred to in section 114(1).

(2)   

The county court has power to grant any remedy which could be granted by

the High Court—

(a)   

in proceedings in tort;

(b)   

on a claim for judicial review.

25

(3)   

The sheriff has power to make any order which could be made by the Court of

Session—

(a)   

in proceedings for reparation;

(b)   

on a petition for judicial review.

(4)   

An award of damages may include compensation for injured feelings (whether

30

or not it includes compensation on any other basis).

(5)   

Subsection (6) applies if the county court or sheriff—

(a)   

finds that a contravention of a provision referred to in section 114(1) is

established by virtue of section 19, but

(b)   

is satisfied that the provision, criterion or practice was not applied with

35

the intention of discriminating against the claimant or pursuer.

(6)   

The county court or sheriff must not make an award of damages unless it first

considers whether to make any other disposal.

(7)   

The county court or sheriff must not grant a remedy other than an award of

damages or the making of a declaration unless satisfied that no criminal matter

40

would be prejudiced by doing so.

 
 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

77

 

Chapter 3

Employment tribunals

120     

Jurisdiction

(1)   

An employment tribunal has, subject to section 121, jurisdiction to determine a

complaint relating to—

5

(a)   

a contravention of Part 5 (work);

(b)   

a contravention of section 108, 111 or 112 that relates to Part 5.

(2)   

An employment tribunal has jurisdiction to determine an application by a

responsible person (as defined by section 61) for a declaration as to the rights

of that person and a worker in relation to a dispute about the effect of a non-

10

discrimination rule.

(3)   

An employment tribunal also has jurisdiction to determine an application by

the trustees or managers of an occupational pension scheme for a declaration

as to their rights and those of a member in relation to a dispute about the effect

of a non-discrimination rule.

15

(4)   

An employment tribunal also has jurisdiction to determine a question that—

(a)   

relates to a non-discrimination rule, and

(b)   

is referred to the tribunal by virtue of section 122.

(5)   

In proceedings before an employment tribunal on a complaint relating to a

breach of a non-discrimination rule, the employer—

20

(a)   

is to be treated as a party, and

(b)   

is accordingly entitled to appear and be heard.

(6)   

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 a non-discrimination

rule.

25

(7)   

Subsection (1)(a) does not apply to a contravention of section 53 in so far as the

act complained of may, by virtue of an enactment, be subject to an appeal or

proceedings in the nature of an appeal.

(8)   

In subsection (1), the references to Part 5 do not include a reference to section

60(1).

30

121     

Jurisdiction in armed forces cases

(1)   

Section 120(1) 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.

35

(2)   

If the complaint is made under the service complaint procedures, it is to be

treated for the purposes of subsection (1)(b) as withdrawn if—

(a)   

neither the officer to whom it is made nor a superior officer refers it to

the Defence Council, and

(b)   

the complainant does not apply for it to be referred to the Defence

40

Council.

 
 

Equality Bill
Part 9 — Enforcement
Chapter 3 — Employment tribunals

78

 

(3)   

If the complaint is made under the old service redress procedures, it is to be

treated for the purposes of subsection (1)(b) as withdrawn if the complainant

does not submit it to the Defence Council under those procedures.

(4)   

The reference in subsection (3) to the old service redress procedures is a

reference to the procedures (other than those relating to the making of a report

5

on a complaint to Her Majesty) referred to in—

(a)   

section 180 of the Army Act 1955,

(b)   

section 180 of the Air Force Act 1955, or

(c)   

section 130 of the Naval Discipline Act 1957.

(5)   

The making of a complaint to an employment tribunal in reliance on subsection

10

(1) does not affect the continuation of the service complaint procedures or (as

the case may be) the old service redress procedures.

122     

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

15

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 a non-discrimination

rule, the court may (whether or not on an application by a party to the

proceedings)—

20

(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.

123     

Time limits

(1)   

Proceedings on a complaint within section 120 may not be brought after the

25

end of—

(a)   

the period of 3 months starting with the date of the act to which the

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 121(1) after the end of—

30

(a)   

the period of 6 months starting with the date of the act to which the

proceedings relate, or

(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

35

the period;

(b)   

failure to do a thing is to be treated as occurring when the person in

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—

40

(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

might reasonably have been expected to do the thing.

 
 

 
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