Equality Bill [HL]—continued
Part 2—continued
        House of Lords

 

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DIRECT MODIFICATION OF AGREEMENTS CONTRARY TO THIS ACT

Equal pay etc

21     Equality clause in contract of employment

(1)    If the terms of a contract on which a woman is employed do not include an equality clause (either directly or by reference to a collective or workforce agreement), they are to be deemed to include one.
(2)    An equality clause is a provision which relates to the terms of a contract (whether the terms are concerned with pay or not) under which a woman is employed and which is to be taken to modify the contract in the manner set out in subsection (3) in any of the following cases:

CASE 1
  Where a woman is employed on like work with a man in the same employment.

CASE 2
  Where a woman (“A”) is employed on like work with a man (“B”) who is employed by another employer, and the terms on which A and B are employed derive from a common source.

CASE 3
  Where a woman is employed on work of equal value to that of a man in the same employment.

CASE 4
  Where a woman (“A”) is employed on work of equal value to that of a man (“B”) who is employed by another employer, and the terms on which A and B are employed derive from a common source.
(3)    An equality clause is to be taken to modify the contract as follows—
(a)    if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which a man is, has been or would be employed, that term of the woman's contract is to be treated as modified so that it is not less favourable; and
(b)    if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting a man which is included in the contract under which he is, has been or would be employed, the woman's contract is to be treated as including such a term.
(4)    The requirements of subsection (3) are to be treated as met by an equality clause that is incorporated in, or operates by reference to, such of the following that satisfy the conditions in subsection (5)—
(a)    a collective agreement;
(b)    a workforce agreement; or
(c)    an award of the Central Arbitration Committee made under section 33.
(5)    The conditions are that—
(a)    the agreement or award contains provision giving effect to subsection (3) but provides for the full implementation of that provision to be phased in over a stated period;
(b)    that period does not exceed five years (beginning with the date on which the agreement was signed or the award made);
(c)    where the agreement or award provides for payment of a sum of money to be made over that period, it also includes a requirement that a proportion of the total payment is to be made annually; and
(d)    the employer shows—
(i)    that it is necessary for the full implementation of subsection (3) be phased-in in order to avoid placing a disproportionate burden on him; and
(ii)    that the terms in the agreement or award are a genuine, determining and proportionate means of achieving that aim.
(6)    Any question relating to the effect of an equality clause is to be determined in accordance with Part 5.

22     Equality clause in contract of employment: interpretation

(1)    Provisions of section 21, and of this section, which are framed with reference to women and their treatment relative to men are to be taken to apply equally in the converse case to men and their treatment relative to women.
(2)    For the purposes of section 21(3)—
(a)    men are to be treated as in the same employment with a woman if they are men who are, or have been, employed by her employer or by an associated employer (and for these purposes two employers are to be treated as associated if—
(i)    one is a company of which the other has control (whether directly or indirectly); or
(ii)    both are companies of which a third person (directly or indirectly) has control);
(b)    in relation to Case 1 and Case 2, a woman is to be regarded as employed on like work with men if (but only if)—
(i)    her work and theirs is of the same or a broadly similar nature; and
(ii)    the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment;
    and, in comparing her work with theirs, regard is to be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences; and
(c)    in relation to Case 3 or Case 4, a woman is to be regarded as employed on work of equal value with that of any men if (but only if)—
(i)    her job and their job are of equal value, in terms of the demand made on a worker under various headings (such as effort, skill or decision); or
(ii)    her job and their job would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand in respect of any aspect of the job.
(3)    In section 21—
  “collective agreement” has the meaning given in section 178(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52);
  “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or kind, which the worker receives directly or indirectly, in respect of his employment, from his employer; and
  “workforce agreement” means an agreement between an employer and the appropriate representatives of his workforce which—
(a)    is in writing;
(b)    is signed;
(c)    has effect for a period specified in the agreement (which may not exceed a period of five years beginning with the date of signing); and
(d)    applies to all members of the workforce or of a particular group of it (being a group undertaking a particular function, working at a particular workplace or belonging to a particular department or unit within their employer's business).
(4)    In the definition of “workforce agreement” in subsection (3), “appropriate representatives”, in relation to the workforce of an employer, means—
(a)    if the members of the workforce are of a description in respect of which an independent trade union is recognised by the employer, any representatives of the trade union;
(b)    in any other case, any representatives of the workforce who have been duly elected in accordance with the requirements of subsection (5) to represent the workforce or a particular group of it.
(5)    The requirements of this subsection are that—
(a)    the number of representatives to be elected is determined by the employer;
(b)    the candidates for election as representatives of the workforce are members of the workforce and the candidates for election as representatives of a particular group of the work force are members of the group in question;
(c)    no worker who is eligible to be a candidate is unreasonably excluded from standing for election;
(d)    all members of the workforce are entitled to vote for representatives of the workforce and all members of a particular group are entitled to vote for representatives of that group;
(e)    the workers entitled to vote may vote for as many candidates as there are representatives to be elected; and
(f)    the election is conducted so as to secure that—
(i)    as far as reasonably practicable, those voting do so in secret; and
(ii)    the votes given at the election are fairly and accurately counted.
Other agreements contrary to this Part

23     Avoidance and revision of certain terms in agreements

(1)    Any term in a contract or in any other agreement is void so far as it purports to—
(a)    require a person to do anything which would contravene any provision of, or made under, this Part;
(b)    exclude or limit the operation of any provision of, or made under, this Part; or
(c)    prevent any person or body from instituting (by virtue of section 7) proceedings against another person under Part 5.
(2)    Any person interested in an agreement to which subsection (1) applies may apply to a tribunal for an order modifying the agreement to take account of the effect of subsection (1) and the tribunal may make such order as it thinks just and equitable in the circumstances of the case.
(3)    An order under subsection (2) may include provision as respects any period before the making of the order.
(4)    No order may be made under subsection (2) unless all affected persons have been—
(a)    given notice of the application; and
(b)    afforded an opportunity to make representations to the court.
(5)    Subsection (4) applies subject to any tribunal rules or rules of court providing for notice to be dispensed with.

24     Agreements to which section 23 does not apply

(1)    Section 23(1)(b) and (c) do not apply to—
(a)    an agreement settling a claim against any person that is, or may be, instituted by virtue of section 7; or
(b)    an agreement falling within subsection (2).
(2)    An agreement falls within this subsection if—
(a)    it is an agreement not to institute proceedings under Part 5 or not to continue such proceedings; or
(b)    it satisfies the conditions mentioned in subsection (3).
(3)    The conditions are—
(a)    that the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement (and in particular his ability to pursue his complaint before a tribunal);
(b)    that when the adviser gave the advice there must have been 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 respect of loss arising in consequence of the advice; and
(c)    that the agreement must be in writing, relate to the particular complaint, identify the adviser and state that the conditions are satisfied.
(4)    A person is a relevant independent adviser for the purposes of subsection (3)(a) if—
(a)    he is a qualified lawyer;
(b)    he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and authorised to do so on behalf of the trade union;
(c)    he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and authorised to do so on behalf of the centre; or
(d)    he is a person of a description specified in an order made by the Secretary of State.
(5)    But a person is not, in relation to a complainant, a relevant independent adviser for the purposes of subsection (3)(a) if—
(a)    he is, is employed by or is acting in the matter for, the other party or a person connected with the other party;
(b)    in the case of a person falling within subsection (4)(b) or (c), the trade union or advice centre is the other party or a person connected with the other party;
(c)    in the case of a person falling within subsection (4)(c), the complainant makes a payment for the advice received by him; or
(d)    in the case of a person of a description specified in an order made under subsection (4)(d), any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.
(6)    For the purposes of subsection (5), two employers are to be treated as connected if—
(a)    one is a company of which the other (directly or indirectly) has control; or
(b)    both are companies of which a third person (directly or indirectly) has control.
(7)    For the purposes of subsection (2)(a), an agreement under which the parties agree to submit a dispute to arbitration—
(a)    is to be regarded as being an agreement not to institute, or an agreement not to continue, proceedings if the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) and the agreement is to submit it to arbitration in accordance with the scheme; but
(b)    is to be regarded as neither being nor including such an agreement in any other case.
(8)    In this section—
  “qualified lawyer” means—
(a)    as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), a solicitor who holds a practising certificate or a person other than a barrister or a solicitor who is an authorised advocate or authorised litigator (within the Courts and Legal Services Act 1990 (c. 41)); and
(b)    as respects proceedings in Scotland, an advocate (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate; and
  “independent trade union” has the same meaning as it has in the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52).
 

 
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