Equality Act 2010, section 61

Non-discrimination rule

Part 5 Work

(1)An occupational pension scheme must be taken to include a non-discrimination rule.

(2)A non-discrimination rule is a provision by virtue of which a responsible person (A)—

(a)must not discriminate against another person (B) in carrying out any of A's functions in relation to the scheme;

(b)must not, in relation to the scheme, harass B;

(c)must not, in relation to the scheme, victimise B.

(3)The provisions of an occupational pension scheme have effect subject to the non-discrimination rule.

(4)The following are responsible persons—

(a)the trustees or managers of the scheme;

(b)an employer whose employees are, or may be, members of the scheme;

(c)a person exercising an appointing function in relation to an office the holder of which is, or may be, a member of the scheme.

(5)A non-discrimination rule does not apply in relation to a person who is a pension credit member of a scheme.

(6)An appointing function is any of the following—

(a)the function of appointing a person;

(b)the function of terminating a person's appointment;

(c)the function of recommending a person for appointment;

(d)the function of approving an appointment.

(7)A breach of a non-discrimination rule is a contravention of this Part for the purposes of Part 9 (enforcement).

(8)It is not a breach of a non-discrimination rule for the employer or the trustees or managers of a scheme to maintain or use in relation to the scheme rules, practices, actions or decisions relating to age which are of a description specified by order by a Minister of the Crown.

(9)An order authorising the use of rules, practices, actions or decisions which are not in use before the order comes into force must not be made unless the Minister consults such persons as the Minister thinks appropriate.

(10)A non-discrimination rule does not have effect in relation to an occupational pension scheme in so far as an equality rule has effect in relation to it (or would have effect in relation to it but for Part 2 of Schedule 7).

(11)A duty to make reasonable adjustments applies to a responsible person.

Definitions used in section 61 6

occupational pension scheme

“occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993 ;

Defined in s.212(1) · see it in the full Act
non-discrimination rule

“non-discrimination rule” has the meaning given in section 61;

Defined in s.212(1) · see it in the full Act
trustees or managers

(11) “Employer”, “deferred member”, “pension credit member”, “pensionable service”, “pensioner member” and “trustees or managers” each have, in relation to an occupational pension scheme, the meaning given by section 124 of the Pensions Act 1995 .

Defined in s.212(11) · see it in the full Act
Member

(10) “Member”, in relation to an occupational pension scheme, means an active member, a deferred member or a pensioner member (within the meaning, in each case, given by section 124 of the Pensions Act 1995 ).

Defined in s.212(10) · see it in the full Act
pension credit member

(11) “Employer”, “deferred member”, “pension credit member”, “pensionable service”, “pensioner member” and “trustees or managers” each have, in relation to an occupational pension scheme, the meaning given by section 124 of the Pensions Act 1995 .

Defined in s.212(11) · see it in the full Act
equality rule

“equality rule” means a sex equality rule or maternity equality rule;

Defined in s.212(1) · see it in the full Act

Cases considering section 61 10

Nicola Clark & Anor v Chief Constable of Derbyshire Constabulary & Ors

[2024] EWCA Civ 676 · 19 June 2024Limits

Applies section 61’s occupational pension scheme route to jurisdiction. Because regulation 12 was not an occupational pension scheme under the <span class="legis">Pension Schemes Act 1993</span>, the section 61 route was unavailable. (see paras [44]-[56]) Confirms that breach of an occupational pension scheme’s non-discrimination rule is a contravention enforceable under Part 9. The Court held that this route could not apply because regulation 12 was not an occupational pension scheme. (see paras [19]; [44]; [56])

Lawrence Ewan McGaughey & Anor v Universities Superannuation Scheme Limited & Ors

[2023] EWCA Civ 873 · 21 July 2023

The court relied on the provision to hold that direct individual or group claims would have the same practical effect as the proposed derivative claim. (see para [185])

Newell Trustees Limited v Newell Rubbermaid UK Services Limited & Anor

[2024] EWHC 48 (Ch) · 23 January 2024Interprets

Confirms that every occupational pension scheme is taken to include a non-discrimination rule from 1 October 2010. The rule was central to the court’s analysis of the alleged age discrimination. (see paras [267]-[271]) Defines the conduct prohibited by the non-discrimination rule, including discrimination by a responsible person in carrying out functions in relation to the scheme. The court distinguished this self-standing route from the rule-based claim under section 61(3). (see paras [268], [282]-[283]) Interprets the provision as overriding scheme rules only where those rules require a responsible person to discriminate. Historical eligibility rules recording how members entered different sections did not impose such an obligation on the trustee. (see paras [269]-[304]) Confirms that breach of a non-discrimination rule is a contravention of Part 5 for enforcement purposes. The provision was addressed as part of the statutory framework but did not affect the outcome. (see paras [276]-[277]) Applies the statutory exception for age-related rules, practices, actions or decisions authorised by ministerial order. The court held that the related temporal limitation was not displaced in the circumstances assumed. (see paras [329]-[344])

2 more judgments, and what each says about section 61, are in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Modifications

  1. C11S. 61 excluded (10.3.2022 for specified purposes) by the Public Service Pensions and Judicial Offices Act 2022 (c. 7), ss. 30, 131(1)(2)(a)(b) (with ss. 31(1), 32)
  2. C12S. 61 excluded (10.3.2022 for specified purposes, 4.7.2023 in so far as not already in force) by Public Service Pensions and Judicial Offices Act 2022 (c. 7), ss. 66, 131(1)(2)(c) (with ss. 67(1), 68); S.I. 2023/746, reg. 2(a)
  3. C13S. 61 excluded (10.3.2022 for specified purposes, 1.10.2023 in so far as not already in force) by Public Service Pensions and Judicial Offices Act 2022 (c. 7), ss., 30, 131(2)(a)(b) (with ss. 31(1), 32)

Commencement

  1. I16S. 61 wholly in force; s. 61 not in force at Royal Assent see s. 216; s. 61(8)(9) in force for certain purposes at 6.7.2010 by S.I. 2010/1736, art. 2, Sch.; s. 61 in force at 1.10.2010 in so far as not already in force by S.I. 2010/2317, art. 2(1)(5)(b) (with art. 15)