House of Lords portcullis
House of Lords
Session 2009 - 10
Internet Publications
Other Bills before Parliament

Equality Bill


Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

84

 
 

Case

Arrears day

 
 

A concealment case or an

The day on which the breach first

 
 

incapacity case (or a case

occurred.

 
 

which is both).

  
 

(5)   

In relation to proceedings in Scotland, the arrears day is the first day of—

5

(a)   

the period of 5 years ending with the day on which the proceedings

were commenced, or

(b)   

if the case involves a relevant incapacity, or a relevant fraud or error,

the period of 20 years ending with that day.

132     

Remedies in pensions cases

10

(1)   

This section applies to proceedings before a court or employment tribunal on

a complaint relating to—

(a)   

a breach of an equality rule, or

(b)   

a breach of an equality clause with respect to membership of, or rights

under, an occupational pension scheme.

15

(2)   

If the court or tribunal finds that there has been a breach as referred to in

subsection (1)—

(a)   

it may make a declaration as to the rights of the parties in relation to the

matters to which the proceedings relate;

(b)   

it must not order arrears of benefits or damages or any other amount to

20

be paid to the complainant.

(3)   

Subsection (2)(b) does not apply if the proceedings are proceedings to which

section 133 applies.

(4)   

If the breach relates to a term on which persons become members of the

scheme, the court or tribunal may declare that the complainant is entitled to be

25

admitted to the scheme with effect from a specified date.

(5)   

A date specified for the purposes of subsection (4) must not be before 8 April

1976.

(6)   

If the breach relates to a term on which members of the scheme are treated, the

court or tribunal may declare that the complainant is, in respect of a specified

30

period, entitled to secure the rights that would have accrued if the breach had

not occurred.

(7)   

A period specified for the purposes of subsection (6) must not begin before 17

May 1990.

(8)   

If the court or tribunal makes a declaration under subsection (6), the employer

35

must provide such resources to the scheme as are necessary to secure for the

complainant (without contribution or further contribution by the complainant

or other members) the rights referred to in that subsection.

133     

Remedies in claims for arrears brought by pensioner members

(1)   

This section applies to proceedings before a court or employment tribunal on

40

a complaint by a pensioner member of an occupational pension scheme

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

85

 

relating to a breach of an equality clause or rule with respect to a term on which

the member is treated.

(2)   

If the court or tribunal finds that there has been a breach referred to in

subsection (1), it may—

(a)   

make a declaration as to the rights of the complainant and the

5

respondent in relation to the matters to which the proceedings relate;

(b)   

order an award by way of arrears of benefits or damages or of any other

amount in relation to the complainant.

(3)   

The court or tribunal must not order an award under subsection (2)(b) in

respect of a time before the arrears day.

10

(4)   

If the court or tribunal orders an award under subsection (2)(b), the employer

must provide such resources to the scheme as are necessary to secure for the

complainant (without contribution or further contribution by the complainant

or other members) the amount of the award.

(5)   

In relation to proceedings in England and Wales, the arrears day is, in a case

15

mentioned in the first column of the table, the day mentioned in the second

column.

 

Case

Arrears day

 
 

A standard case

The day falling 6 years before the day on

 
  

which the proceedings were commenced.

 

20

 

A concealment case or an

The day on which the breach first

 
 

incapacity case (or a case

occurred.

 
 

which is both).

  

(6)   

In relation to proceedings in Scotland, the arrears day is the first day of—

(a)   

the period of 5 years ending with the day on which the proceedings

25

were commenced, or

(b)   

if the case involves a relevant incapacity, or a relevant fraud or error,

the period of 20 years ending with that day.

134     

Supplementary

(1)   

This section applies for the purposes of sections 131 to 133.

30

(2)   

A standard case is a case which is not—

(a)   

a concealment case,

(b)   

an incapacity case, or

(c)   

a concealment case and an incapacity case.

(3)   

A concealment case in relation to an equality clause is a case where—

35

(a)   

the responsible person deliberately concealed a qualifying fact (as

defined by section 129) from the worker, and

(b)   

the worker commenced the proceedings before the end of the period of

6 years beginning with the day on which the worker discovered (or

could with reasonable diligence have discovered) the qualifying fact.

40

(4)   

A concealment case in relation to an equality rule is a case where—

 
 

Equality Bill
Part 9 — Enforcement
Chapter 4 — Equality of terms

86

 

(a)   

the employer or the trustees or managers of the occupational pension

scheme in question deliberately concealed a qualifying fact (as defined

by section 129) from the member, and

(b)   

the member commenced the proceedings before the end of the period

of 6 years beginning with the day on which the member discovered (or

5

could with reasonable diligence have discovered) the qualifying fact.

(5)   

An incapacity case is a case where the worker or member—

(a)   

had an incapacity when the breach first occurred, and

(b)   

commenced the proceedings before the end of the period of 6 years

beginning with the day on which the worker or member ceased to have

10

the incapacity.

(6)   

A case involves a relevant incapacity or a relevant fraud or error if the period

of 5 years referred to in section 131(5)(a) is, as a result of subsection (7) below,

reckoned as a period of more than 20 years.

(7)   

For the purposes of the reckoning referred to in subsection (6), no account is to

15

be taken of time when the worker or member—

(a)   

had an incapacity, or

(b)   

was induced by a relevant fraud or error to refrain from commencing

proceedings (not being a time after the worker or member could with

reasonable diligence have discovered the fraud or error).

20

(8)   

For the purposes of subsection (7)—

(a)   

a fraud is relevant in relation to an equality clause if it is a fraud on the

part of the responsible person;

(b)   

an error is relevant in relation to an equality clause if it is induced by

the words or conduct of the responsible person;

25

(c)   

a fraud is relevant in relation to an equality rule if it is a fraud on the

part of the employer or the trustees or managers of the scheme;

(d)   

an error is relevant in relation to an equality rule if it is induced by the

words or conduct of the employer or the trustees or managers of the

scheme.

30

(9)   

A reference in subsection (8) to the responsible person, the employer or the

trustees or managers includes a reference to a person acting on behalf of the

person or persons concerned.

(10)   

In relation to terms of service, a reference in section 131(5) or subsection (3) or

(5)(b) of this section to commencing proceedings is a reference to making a

35

service complaint.

(11)   

A reference to a pensioner member of a scheme includes a reference to a person

who is entitled to the present payment of pension or other benefits derived

through a member.

(12)   

In relation to proceedings before a court—

40

(a)   

a reference to a complaint is to be read as a reference to a claim, and

(b)   

a reference to a complainant is to be read as a reference to a claimant.

 
 

Equality Bill
Part 9 — Enforcement
Chapter 5 — Miscellaneous

87

 

Chapter 5

Miscellaneous

135     

Burden of proof

(1)   

This section applies to any proceedings relating to a contravention of this Act.

(2)   

If there are facts from which the court could decide, in the absence of any other

5

explanation, that a person (A) contravened the provision concerned, the court

must hold that the contravention occurred.

(3)   

But subsection (2) does not apply if A shows that A did not contravene the

provision.

(4)   

The reference to a contravention of this Act includes a reference to a breach of

10

an equality clause or rule.

(5)   

This section does not apply to proceedings for an offence under this Act.

(6)   

A reference to the court includes a reference to—

(a)   

an employment tribunal;

(b)   

the Asylum and Immigration Tribunal;

15

(c)   

the Special Immigration Appeals Commission;

(d)   

the First-tier Tribunal;

(e)   

the Special Educational Needs Tribunal for Wales;

(f)   

an Additional Support Needs Tribunal for Scotland.

136     

Previous findings

20

(1)   

A finding in relevant proceedings in respect of an act which has become final

is to be treated as conclusive in proceedings under this Act.

(2)   

Relevant proceedings are proceedings before a court or employment tribunal

under any of the following—

(a)   

section 19 or 20 of the Race Relations Act 1968 (c. 71);

25

(b)   

the Equal Pay Act 1970 (c. 41);

(c)   

the Sex Discrimination Act 1975 (c. 65);

(d)   

the Race Relations Act 1976 (c. 74);

(e)   

section 6(4A) of the Sex Discrimination Act 1986 (c. 59);

(f)   

the Disability Discrimination Act 1995 (c. 50);

30

(g)   

Part 2 of the Equality Act 2006 (c. 3);

(h)   

the Employment Equality (Religion and Belief) Regulations 2003 (S.I.

2003/1660);

(i)   

the Employment Equality (Sexual Orientation) Regulations 2003 (S.I.

2003/1661);

35

(j)   

the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031);

(k)   

the Equality Act (Sexual Orientation) Regulations 2007 (S.I. 2007/1263).

(3)   

A finding becomes final—

(a)   

when an appeal against the finding is dismissed, withdrawn or

abandoned, or

40

(b)   

when the time for appealing expires without an appeal having been

brought.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2010
Revised 10 February 2010