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Session 2009 - 10
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Other Bills before Parliament

Equality Bill


Equality Bill
Part 10 — Contracts, etc.

91

 

(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

reference to a prospective member.

(6)   

In relation to proceedings in England and Wales, a person has an incapacity if

5

the person—

(a)   

has not attained the age of 18, or

(b)   

lacks capacity (within the meaning of the Mental Capacity Act 2005).

(7)   

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

person—

10

(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; and “service complaint procedures” means the procedures

15

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;

20

(c)   

criminal proceedings.

Part 10

Contracts, etc.

Contracts and other agreements

142     

Unenforceable terms

25

(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

30

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

35

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

40

70(2)(a) or 76(2), or

 
 

Equality Bill
Part 10 — Contracts, etc.

92

 

(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 148(2) to this section.

143     

Removal or modification of unenforceable terms

(1)   

A county court or the sheriff may, on an application by a person who has an

5

interest in a contract, or other agreement, which includes a term that is

unenforceable as a result of section 142, 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

be affected by it—

10

(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

15

the making of the order.

144     

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.

20

(2)   

A relevant non-contractual term (as defined by section 142) 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

25

114.

(4)   

This section does not apply to a contract which settles a complaint within

section 120 if the contract—

(a)   

is made with the assistance of a conciliation officer, or

(b)   

is a qualifying compromise contract.

30

(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

35

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.

 
 

Equality Bill
Part 10 — Contracts, etc.

93

 

Collective agreements and rules of undertakings

145     

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

5

constitutes, promotes or provides for treatment of the person that is of a

description prohibited by this Act.

146     

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 145.

10

(2)   

But subsection (1) applies only if—

(a)   

the term or rule may in the future have effect in relation to P, and

(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

15

circumstances) be of that description.

(3)   

If the tribunal finds that the complaint is well-founded, it must make an order

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.

20

(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

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

 

25

 

made collective agreement

  
 

Employer

A person who is, or is seeking to be,

 
  

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

 

30

  

member of that organisation

 
 

Association of organisations

A person who is, or is seeking to be,

 
 

of employers

an employee of an employer who is a

 
  

member of an organisation in that

 
  

association

 

35

(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

of the table, a qualifying person is a person of a description specified in the

second column.

 
 

Equality Bill
Part 10 — Contracts, etc.

94

 
 

Description of person who

Qualifying person

 
 

made rule of undertaking

  
 

Employer

A person who is, or is seeking to be,

 
  

an employee of that employer

 
 

Trade organisation or

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

 

5

 

qualifications body

member of the organisation or body

 
  

A person on whom the body has

 
  

conferred a relevant qualification

 
  

A person seeking conferment by the

 
  

body of a relevant qualification

 

10

Supplementary

147     

Meaning of “qualifying compromise contract”

(1)   

This section applies for the purposes of this Part.

(2)   

A qualifying compromise contract is a contract in relation to which each of the

conditions in subsection (3) is met.

15

(3)   

Those conditions are that—

(a)   

the contract is in writing,

(b)   

the contract relates to the particular complaint,

(c)   

the complainant has, before entering into the contract, received advice

from an independent adviser about its terms and effect (including, in

20

particular, its effect on the complainant’s ability to pursue the

complaint before an employment tribunal),

(d)   

on the date of the giving of the advice, there is in force a contract of

insurance, or an indemnity provided for members of a profession or

professional body, covering the risk of a claim by the complainant in

25

respect of loss arising from the advice,

(e)   

the contract identifies the adviser, and

(f)   

the contract states that the conditions in paragraphs (c) and (d) are met.

(4)   

Each of the following is an independent adviser—

(a)   

a qualified lawyer;

30

(b)   

an officer, official, employee or member of an independent trade union

certified in writing by the trade union as competent to give advice and

as authorised to do so on its behalf;

(c)   

a worker at an advice centre (whether as an employee or a volunteer)

certified in writing by the centre as competent to give advice and as

35

authorised to do so on its behalf;

(d)   

a person of such description as may be specified by order.

(5)   

Despite subsection (4), none of the following is an independent adviser in

relation to a qualifying compromise contract—

(a)   

a person who is a party to the contract or the complaint;

40

(b)   

a person who is connected to a person within paragraph (a);

 
 

Equality Bill
Part 10 — Contracts, etc.

95

 

(c)   

a person who is employed by a person within paragraph (a) or (b);

(d)   

a person who is acting for a person within paragraph (a) or (b) in

relation to the contract or the complaint;

(e)   

a person within subsection (4)(b) or (c), if the trade union or advice

centre is a person within paragraph (a) or (b);

5

(f)   

a person within subsection (4)(c) to whom the complainant makes a

payment for the advice.

(6)   

A “qualified lawyer”, for the purposes of subsection (4)(a), is—

(a)   

in relation to England and Wales, a person who, for the purposes of the

Legal Services Act 2007, is an authorised person in relation to an

10

activity which constitutes the exercise of a right of audience or the

conduct of litigation;

(b)   

in relation to Scotland, an advocate (whether in practice as such or

employed to give legal advice) or a solicitor who holds a practising

certificate.

15

(7)   

“Independent trade union” has the meaning given in section 5 of the Trade

Union and Labour Relations (Consolidation) Act 1992.

(8)   

Two persons are connected for the purposes of subsection (5) if—

(a)   

one is a company of which the other (directly or indirectly) has control,

or

20

(b)   

both are companies of which a third person (directly or indirectly) has

control.

(9)   

Two persons are also connected for the purposes of subsection (5) in so far as a

connection between them gives rise to a conflict of interest in relation to the

contract or the complaint.

25

148     

Interpretation

(1)   

This section applies for the purposes of this Part.

(2)   

A reference to treatment of a description prohibited by this Act does not

include treatment in so far as it is treatment that would contravene—

(a)   

Part 1 (public sector duty regarding socio-economic inequalities), or

30

(b)   

Chapter 1 of Part 11 (public sector equality duty).

(3)   

“Group insurance arrangement” means an arrangement between an employer

and another person for the provision by that other person of facilities by way

of insurance to the employer’s employees (or a class of those employees).

(4)   

“Collective agreement” has the meaning given in section 178 of the Trade

35

Union and Labour Relations (Consolidation) Act 1992.

(5)   

A rule of an undertaking is a rule within subsection (6) or (7).

(6)   

A rule within this subsection is a rule made by a trade organisation or a

qualifications body for application to—

(a)   

its members or prospective members,

40

(b)   

persons on whom it has conferred a relevant qualification, or

(c)   

persons seeking conferment by it of a relevant qualification.

(7)   

A rule within this subsection is a rule made by an employer for application to—

(a)   

employees,

 
 

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

96

 

(b)   

persons who apply for employment, or

(c)   

persons the employer considers for employment.

(8)   

“Trade organisation”, “qualifications body” and “relevant qualification” each

have the meaning given in Part 5 (work).

Part 11

5

Advancement of equality

Chapter 1

Public sector equality duty

149     

Public sector equality duty

(1)   

A public authority must, in the exercise of its functions, have due regard to the

10

need to—

(a)   

eliminate discrimination, harassment, victimisation and any other

conduct that is prohibited by or under this Act;

(b)   

advance equality of opportunity between persons who share a relevant

protected characteristic and persons who do not share it;

15

(c)   

foster good relations between persons who share a relevant protected

characteristic and persons who do not share it.

(2)   

A person who is not a public authority but who exercises public functions

must, in the exercise of those functions, have due regard to the matters

mentioned in subsection (1).

20

(3)   

Having due regard to the need to advance equality of opportunity between

persons who share a relevant protected characteristic and persons who do not

share it involves having due regard, in particular, to the need to—

(a)   

remove or minimise disadvantages suffered by persons who share a

relevant protected characteristic that are connected to that

25

characteristic;

(b)   

take steps to meet the needs of persons who share a relevant protected

characteristic that are different from the needs of persons who do not

share it;

(c)   

encourage persons who share a relevant protected characteristic to

30

participate in public life or in any other activity in which participation

by such persons is disproportionately low.

(4)   

The steps involved in meeting the needs of disabled persons that are different

from the needs of persons who are not disabled include, in particular, steps to

take account of disabled persons’ disabilities.

35

(5)   

Having due regard to the need to foster good relations between persons who

share a relevant protected characteristic and persons who do not share it

involves having due regard, in particular, to the need to—

(a)   

tackle prejudice, and

(b)   

promote understanding.

40

(6)   

Compliance with the duties in this section may involve treating some persons

more favourably than others; but that is not to be taken as permitting conduct

that would otherwise be prohibited by or under this Act.

 
 

Equality Bill
Part 11 — Advancement of equality
Chapter 1 — Public sector equality duty

97

 

(7)   

The relevant protected characteristics are—

age;

disability;

gender reassignment;

pregnancy and maternity;

5

race;

religion or belief;

sex;

sexual orientation.

(8)   

A reference to conduct that is prohibited by or under this Act includes a

10

reference to—

(a)   

a breach of an equality clause or rule;

(b)   

a breach of a non-discrimination rule.

(9)   

Schedule 18 (exceptions) has effect.

150     

Public authorities and public functions

15

(1)   

A public authority is a person who is specified in Schedule 19.

(2)   

In that Schedule—

Part 1 specifies public authorities generally;

Part 2 specifies relevant Welsh authorities;

Part 3 specifies relevant Scottish authorities.

20

(3)   

A public authority specified in Schedule 19 is subject to the duty imposed by

section 149(1) in relation to the exercise of all of its functions unless subsection

(4) applies.

(4)   

A public authority specified in that Schedule in respect of certain specified

functions is subject to that duty only in respect of the exercise of those

25

functions.

(5)   

A public function is a function that is a function of a public nature for the

purposes of the Human Rights Act 1998.

151     

Power to specify public authorities

(1)   

A Minister of the Crown may by order amend Part 1, 2 or 3 of Schedule 19.

30

(2)   

The Welsh Ministers may by order amend Part 2 of Schedule 19.

(3)   

The Scottish Ministers may by order amend Part 3 of Schedule 19.

(4)   

The power under subsection (1), (2) or (3) may not be exercised so as to—

(a)   

add an entry to Part 1 relating to a relevant Welsh or Scottish authority

or a cross-border Welsh or Scottish authority;

35

(b)   

add an entry to Part 2 relating to a person who is not a relevant Welsh

authority;

(c)   

add an entry to Part 3 relating to a person who is not a relevant Scottish

authority.

(5)   

A Minister of the Crown may by order amend Schedule 19 so as to make

40

provision relating to a cross-border Welsh or Scottish authority.

 
 

 
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