Equality Bill [HL]—continued
Part 5—continued
        House of Lords

 

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Applications to tribunal: contraventions of Part 2 of this Act

61     Commission's power to make tribunal applications

(1)    the Commission may make an application to a tribunal alleging that a person has acted in a way made unlawful by any provision of Part 2.
(2)    An application under subsection (1) may be made against—
(a)    the person alleged to have done the act complained of;
(b)    any person who, by virtue of section 17 or 19, is to be treated as having done the act complained of.
(3)    No application may be made under this section if it concerns a matter in respect of which a complaint may be made under section 72(2).
(4)    An application under this section may be made either in the Commission's own name or jointly with one or more persons who appear to the Commission to have been adversely affected by the unlawful act that is the subject of the application.
(5)    An application made under this section is to be determined in accordance with the following provisions of this Part.

62     Time limit for making tribunal applications

(1)    An application under section 61 must be made before the end of the period of six months beginning with—
(a)    the date on which the act complained of was done; or
(b)    in a case in which subsection (2) applies, the date on which the individual who is alleged to have been the victim of the unlawful act complained of discovered the concealment or could with reasonable diligence have discovered it.
(2)    This subsection applies where—
(a)    any fact relevant to the application was deliberately concealed from the alleged victim by the person alleged to have done the unlawful act; and
(b)    the alleged victim did not discover the concealment (or could not with reasonable diligence have discovered it) until after the act was done.
(3)    For the purposes of subsection (1)—
(a)    where the act complained of is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b)    any act extending over a period is to be treated as done at the end of that period; and
(c)    a deliberate omission is to be treated as done when the person in question decided upon it.
(4)    For the purposes of subsection (3)(c), a person is (in the absence of evidence establishing the contrary) to be taken to decide upon an omission—
(a)    when he carries out an act inconsistent with the omitted act; or
(b)    if he has carried out no such inconsistent act, when the period expires within which he might reasonably have expected to carry out the omitted act if it was to be carried out.

63     Tribunal applications: burden of proof

(1)    This section applies to proceedings brought under section 61.
(2)    Unless subsection (3) applies, the tribunal or court hearing the matter must uphold the application if the Commission shows facts from which the tribunal or court could (apart from this section) conclude in the absence of an adequate explanation that the respondent to the application has done the unlawful act complained of.
(3)    This subsection applies if the respondent satisfies the tribunal or court that he did not act in such a way.

64     Tribunal applications: determination

(1)    In this section and section 65, “relevant person” means—
(a)    any person making the application jointly with the Commission under section 61(4);
(b)    any other person who appears to the tribunal or court hearing the matter to have been adversely affected by the unlawful act to which the application relates and who, before any application in respect of that act is heard, registers his interest with the Commission;
    and, for the purposes of paragraph (b), the Secretary of State may by regulations make provision as to the identification and registration of persons claiming that their interests have been adversely affected by any unlawful act.
(2)    On an application under section 61, a tribunal or court hearing the matter may, if it is satisfied that the respondent to the complaint has done the unlawful act complained of—
(a)    recommend that the respondent take such action as appears to the tribunal or court to be reasonable in the circumstances of the case for the purpose of obviating or reducing the adverse effect on the relevant person and on any other person of any act to which the complaint relates; and
(b)    make an order under this section.
(3)    An order under this section is such of the following orders as appears to the tribunal or court to be just and equitable in the circumstances of the case—
(a)    an order requiring the respondent to pay to any relevant person such sum as the tribunal or court may determine;
(b)    where the unlawful act concerned an application by a relevant person for employment with the respondent, an order that that person be engaged by the respondent in employment comparable to that to which his application related or in other suitable employment;
(c)    where a relevant person was formerly employed by the respondent, any order that an employment tribunal may make under section 113 of the Employment Rights Act 1996 (c. 18) (orders for reinstatement or re-engagement);
(d)    such order as the tribunal or court considers reasonable in all the circumstances of the case with a view to obviating or reducing the adverse effect on the relevant person and on any other person of any matter to which the complaint or application relates;
(e)    if it appears to the tribunal or court that an unlawful act has occurred and that there is a reasonable likelihood that it will continue or be repeated, an order restraining (or in Scotland an interdict prohibiting) the act in question;
(f)    if it appears to the tribunal or court that an unlawful act has occurred and that there are steps which could be taken for remedying it, an order requiring any person who has carried out the unlawful act to take such steps as the court may direct to remedy it.
(4)    Any action recommended under subsection (2)(a) must be taken within such period as the tribunal or court may specify.
(5)    In determining whether to make an order under subsection (3)(b), the tribunal or court must have regard to all the circumstances and, in particular—
(a)    whether the person in whose favour the order would be made wishes to be engaged by the respondent; and
(b)    whether it is practicable for the respondent to comply with an order to engage that person.

65     

Amount of awards

(1)    In determining the sum to be paid to a relevant person as a result of an order made under section 64(3)(a), the tribunal or court must apply the principles applicable to the calculation of damages in claims in tort or (in Scotland) in reparation for breach of statutory duty.
(2)    If the tribunal or court considers that it is appropriate in the circumstances of the case to do so, it may include in the sum an amount by way of damages for injury to feelings to compensate any relevant person for any harm suffered (whether or not it includes compensation under any other head).
(3)    If (but only if) the tribunal or court considers—
(a)    that the respondent to the application acted in a way that deliberately and outrageously disregarded the right of the relevant person to respect and common decency; and
(b)    that any other order it has power to make would otherwise be inadequate to punish the respondent;
    it may award an additional amount by way of punitive damages.
(4)    For the purposes of subsection (3), the tribunal or court may regard deterring the respondent and others from similar conduct as being an object of any punishment.
(5)    In considering whether to award punitive damages under subsection (3), the tribunal or court must have regard to all the circumstances and, in particular—
(a)    the need to ensure that any sum awarded does not exceed the minimum required to punish the respondent for his conduct;
(b)    the state of mind of the respondent at the time of the unlawful act;
(c)    whether or not the respondent has behaved in an oppressive manner;
(d)    the number of persons affected by the respondent's act;
(e)    the nature and extent of any benefit the respondent derived from the unlawful act;
(f)    the nature of the harm caused to any relevant person;
(g)    any other matter which the tribunal or court considers relevant.

66     Persistent contraventions

(1)    The Commission may also make an application to a tribunal if it appears to it that, unless restrained, a person is likely to do any act which, if it were done, would—
(a)    be an act made unlawful by any provision of Part 2; and
(b)    qualify as a persistent contravention.
(2)    An act qualifies as a persistent contravention if—
(a)    it is an act made unlawful by any provision of Part 2; and
(b)    it is done by any person before the end of the relevant period.
(3)    The relevant period, in relation to any person, is the period of five years beginning with the date on which an earlier finding of a tribunal or court became final and the finding was that the person in question had done an act made unlawful by any provision of Part 2.
(4)    For the purposes of subsection (3) a finding becomes final when—
(a)    an appeal against the finding is determined or abandoned; or
(b)    the time for appealing expires without an appeal having been made.
(5)    On an application under this section, a tribunal or court may, if it is satisfied that there is a reasonable likelihood that the proposed unlawful act will occur, make an order restraining (or in Scotland an interdict prohibiting) the act in question.

CHAPTER 3

ENFORCEMENT BY INDIVIDUALS AND OTHERS

Complaints to tribunal: contraventions of Part 2

67     Complaints under section 7: conciliation

(1)    The Commission may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in relation to disputes arising under section 7.
(2)    The period for making a complaint allowed by section 8(1) is to be extended by two months if, before the end of that period, the matter to which the complaint relates is referred for conciliation in pursuance of arrangements made under this section.
(3)    In deciding what arrangements (if any) to make, the Commission must have regard to the desirability of securing, so far as reasonably practicable, that conciliation services are available for all disputes arising under section 7 which the parties may wish to refer to conciliation.
(4)    Neither a commissioner nor an employee of the Commission may provide conciliation services in relation to disputes arising under section 7.
(5)    The Commission must ensure that arrangements under subsection (1) include appropriate safeguards to prevent the disclosure to commissioners or employees of the Commission of information obtained by a person in connection with the provision of conciliation services in pursuance of the arrangements.
(6)    Subsection (5) does not apply to—
(a)    information relating to a dispute which is disclosed with the consent of the parties to the dispute; or
(b)    information which is not identifiable with a particular dispute or a particular person and which is reasonably required by the Commission for the purpose of monitoring the operation of the arrangements concerned.
(7)    Anything communicated to a person while providing conciliation services in pursuance of arrangements under subsection (1) is not admissible in any proceedings except with the consent of the person who communicated it to that person.
(8)    “Conciliation services” means advice and assistance provided by a conciliator to the parties to a dispute with a view to promoting its settlement otherwise than on a complaint to a tribunal.

68     Complaints under section 7: interim relief

(1)    Any person who makes a complaint under section 7 may apply to the tribunal (or to any court to which the matter has been transferred) for interim relief.
(2)    The tribunal or court must determine the application for interim relief as soon as practicable after receiving the application.
(3)    The tribunal or court may make an order granting on an interim basis any remedy that the tribunal would have the power to grant in its final decision.
(4)    Any order under this section is subject to the further order, or final decision, of the tribunal or court.
(5)    If, after hearing an application for interim relief, it appears to the tribunal or court that on determining the complaint to which the application relates it is likely that the tribunal will find that the employer has done an act made unlawful by any provision of Part 2 of this Act, section 129(2) to (10) of the Employment Rights Act 1996 (c. 18) has effect to determine the procedure to be followed by the tribunal and the orders it may make.
(6)    At any time between—
(a)    the making of an order by virtue of subsection (5); and
(b)    the determination or settlement of the complaint;
    the employer or the employee may apply to the tribunal or court hearing the matter for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order (and section 129(2) to (10) of the Employment Rights Act 1996 applies in relation to such an application as in relation to an original application for interim relief).
(7)    Sections 130 and 132 of the Employment Rights Act 1996 apply in relation to any order made by virtue of subsection (5) or (6) as in relation to an order under section 129 of that Act, with references in those sections to an employment tribunal being read as reference to the tribunal or court hearing the matter under this Act.

69     Complaints under section 7: burden of proof

(1)    This section applies to proceedings brought under section 7.
(2)    Unless subsection (3) applies, the tribunal or court hearing the matter must uphold the complaint if the complainant shows facts from which the tribunal or court could (apart from this section) conclude in the absence of an adequate explanation that the respondent to the complaint has done the unlawful act complained of.
(3)    This subsection applies if the respondent satisfies the tribunal or court that he did not act in such a way.
 

 
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