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

 

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70     Complaints under section 7: determination

(1)    In this section and section 71, “relevant person” means the complainant or, if different, the victim of the unlawful act.
(2)    On a complaint under section 7, 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 the relevant person such sum as the tribunal or court may determine;
(b)    where the complaint relates to an application for employment with the respondent, an order that the relevant person be engaged by the respondent in employment comparable to that to which his application related or in other suitable employment;
(c)    where the 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 act to which the complaint relates.
(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 must have regard to—
(a)    whether the relevant person 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.

71     Amount of awards

(1)    In determining the sum to be paid to a relevant person as a result of an order made under section 70(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 the 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 complaint 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 act to which the complaint relates;
(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 the relevant person;
(g)    any other matter which the tribunal or court considers relevant.

Tribunal references relating to equality clause

72     Equality clause: cases in which a tribunal reference may be made

(1)    This section and sections 73 to 75 apply in relation to any contract of employment which contains an equality clause by virtue of section 21.
(2)    Any claim in respect of the contravention of any term of that contract which is modified or included by virtue of the equality clause (including a claim for arrears of remuneration or damages in respect of the contravention) may be presented to a tribunal by way of complaint.
(3)    Where a dispute arises in relation to the effect of an equality clause, the employer may apply to a tribunal for an order declaring the rights of the employer and the employee in relation to the matter in question.
(4)    Where it appears to the Secretary of State that—
(a)    there may be a question whether the employer of any women is or has been contravening a term modified or included by virtue of their equality clauses, but
(b)    it is not reasonable to expect them to take steps to have the question determined;
    the question may be referred by him as respects all or any of them to a tribunal and shall be dealt with as if the reference were of a claim by the women or woman against the employer.
(5)    Where it appears to the court in which any proceedings are pending that a claim or counter-claim in respect of the operation of an equality clause could more conveniently be disposed of separately by a tribunal, the court may direct that the claim or counter-claim shall be struck out.
(6)    Where in proceedings before any court a question arises as to the operation of an equality clause, the court may (on the application of any party to the proceedings or otherwise)—
(a)    refer that question, or direct it to be referred by any party to the proceedings, to a tribunal for determination; and
(b)    stay or sist the proceedings in the meantime.
(7)    Any expression used in this section, or in sections 73 to 75, has the meaning given in section 22.

73     Equality clause: time limits for bringing proceedings

(1)    No determination may be made by a tribunal in any proceedings brought before it under section 72 unless the proceedings are instituted on or before the qualifying date.
(2)    Except as stated in subsection (3), the qualifying date is the date falling six months after the last date on which the woman was employed in the employment.
(3)    The qualifying date is to be construed—
(a)    in accordance with subsection (4) in any case where—
(i)    the proceedings relate to a period during which there was a stable employment relationship between the woman and the employer; and
(ii)    neither paragraph (b) nor (c ) applies;
(b)    in accordance with subsection (5) in any case where any fact relevant to the claim was deliberately concealed from the woman by the employer and the woman did not discover the concealment (or could not with reasonable diligence have discovered it) until after—
(i)    the last date on which the woman was employed in the employment; or
(ii)    the date on which the stable employment relationship ended (as the case may be);
(c)    in accordance with subsection (6) in any case where, at any time during the period in which the proceedings could have been brought (apart from this paragraph), the woman was under a disability.
(4)    The qualifying date, as construed in accordance with this subsection, is the date falling six months after the date on which the stable employment relationship ended.
(5)    The qualifying date, as construed in accordance with this subsection, is the date falling six months after the date on which the woman discovered the concealment (or could with reasonable diligence have discovered it).
(6)    The qualifying date, as construed in accordance with this subsection, is the date falling six months after the date on which the woman ceased to be under a disability.
(7)    But subsection (6) does not apply in a case where the woman ceased to be under a disability on or before—
(a)    the last date on which the woman was employed in the employment; or
(b)    the date on which the stable employment relationship ended, (as the case may be).
(8)    For the purposes of this section, a stable employment relationship does not exist between the woman and the employer unless she has been employed by him under two or more contracts of employment in succession (whether or not there is an interval between the contracts being in force).
(8)    For the purposes of this section—
(a)    in England and Wales, a woman is under a disability if she is a minor or of unsound mind;
(b)    in Scotland, a woman is under a disability who has not attained the age of sixteen years or who is incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000.

74     Equality clause: determination

(1)    On any proceedings brought before it under section 72, the tribunal hearing the matter may make an order under this section.
(2)    An order under this section is such of the following orders as appears to it to be just and equitable in the circumstances of the case—
(a)    an order declaring whether there has been a contravention of any term in a person's contract of employment which is modified or included by virtue of the equality clause;
(b)    an award of arrears of remuneration or damages in respect of the contravention;
(c)    an order declaring the rights of the employer and the employee;
(d)    such other order as the court or tribunal thinks fit.
(3)    But no order may be made—
(a)    to the extent that the employer shows that the variation between the man's contract and the woman's contract (or any part of it) is due to any genuine material factor which is not the difference of sex; or
(b)    in any case where such variations are due to the application of an apparently neutral provision, criterion or practice, to the extent that the employer is able to show that—
(i)    the provision, criterion or practice is objectively justified by a legitimate aim; and
(ii)    the means of achieving that aim are genuine, determining and proportionate.

75     Limit on amount of awards

(1)    In determining the sum to be paid as a result of an order made under section 74(2)(b), a woman is not entitled to be awarded any payment by way of arrears of remuneration or damages in respect of—
(a)    in England and Wales, any time earlier than the arrears date determined in accordance with subsections (2) to (4); and
(b)    in Scotland, any time before the relevant period determined in accordance with subsections (5) to (7).
(2)    Except as stated in subsections (3) and (4), the arrears date is the date falling six years before the date on which the proceedings were instituted.
(3)    The arrears date is the date of the contravention where—
(a)    the employer deliberately concealed from the woman any fact relevant to the contravention of a term modified or included by virtue of an equality clause to which the proceedings relate, and
(b)    the proceedings were instituted within six years of the date on which the woman discovered the concealment (or could with reasonable diligence have discovered it).
(4)    The arrears date is the date of the contravention where—
(a)    the woman was under a disability at the time of the contravention of a term modified or included by virtue of an equality clause to which the proceedings relate; and
(b)    the proceedings were instituted within six years of the date on which the woman ceased to be under a disability.
(5)    In Scotland, the relevant period is the period of five years which ends on the date on which proceedings were instituted.
(6)    That period of five years is not to be regarded as running during—
(a)    any time when the woman was induced, by reason of fraud on the part of, or error induced by the words or conduct of, the employer or any person acting on his behalf, to refrain from commencing proceedings (not being a time after she could with reasonable diligence have discovered the fraud or error); or
(b)    any time when she was under a disability.
(7)    If, after regard is had to subsection (6)(a) and (b), the relevant period would include any time more than twenty years before the date on which proceedings were instituted, the relevant period is instead the period of twenty years which ends on that date.
(8)    For the purposes of this section—
(a)    in England and Wales, a woman is under a disability if she is a minor or of unsound mind;
(b)    in Scotland, a woman is under a disability who has not attained the age of sixteen years or who is incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000.

CHAPTER 4

PERSONS IN DEFAULT

Enforcement of recommendations and orders

76     Enforcement of recommendations

(1)    Where a tribunal or court makes a recommendation under section 64(2)(a) or 70(2)(a), an application for an order enforcing it may be made to the tribunal or court which made the recommendation—
(a)    by the Commission;
(b)    by the relevant person (within the meaning of section 64(1) or 70(1), as the case may be); or
(c)    if different, by the person who initiated the proceedings which resulted in the recommendation.
(2)    An application under this section may not be made—
(a)    before the end of such period as may be specified in the recommendation; or
(b)    if no period is specified, before the end of a period of 56 days commencing with the date on which the recommendation was made.
(3)    Where an application is made, the tribunal or court hearing it may take either of the steps specified in subsection (4) if—
(a)    it considers that a person has failed without reasonable justification to comply with the recommendation; and
(b)    it appears to the tribunal to be just and equitable in the circumstances of the case to do so.
(4)    The steps specified in this subsection are—
(a)    to increase the amount of the sum payable under any order made under section 64(3)(a) or 70(3)(a) (as the case may be) which may have accompanied the recommendation; or
(b)    if no such order was made, to make such an order.
(5)    A tribunal making an increase under subsection (4)(a) may order the payment of such additional amount as it thinks fit, having regard to the loss suffered by the person in whose favour the order was made in consequence of the failure of the respondent to complaint to comply (or to comply fully) with the recommendation.
 

 
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