Equality Act 2010, section 66

Sex equality clause

Part 5 Work

(1)If the terms of A's work do not (by whatever means) include a sex equality clause, they are to be treated as including one.

(2)[F71 Where this section applies by virtue of section 64(1),F71] a sex equality clause is a provision that has the following effect—

(a)if a term of A's is less favourable to A than a corresponding term of B's is to B, A's term is modified so as not to be less favourable;

(b)if A does not have a term which corresponds to a term of B's that benefits B, A's terms are modified so as to include such a term.

(3)Subsection (2)(a) applies to a term of A's relating to membership of or rights under an occupational pension scheme only in so far as a sex equality rule would have effect in relation to the term.

(4)In the case of work within section 65(1)(b), a reference in subsection (2) above to a term includes a reference to such terms (if any) as have not been determined by the rating of the work (as well as those that have).

[F72 (5)Where this section applies by virtue of section 64(3), a sex equality clause is a provision that has the effect that if, by virtue of the application of the guaranteed minimum pension provisions, a term of A’s that relates to membership of or rights under the scheme concerned is less favourable to A than it would be if A were of the opposite sex, the term, in so far as a sex equality rule would have effect in relation to it, is modified so as not to be less favourable.

(6) “Guaranteed minimum pension provisions” means so much of the Pension Schemes Act 1993 and of any other enactment as relates to guaranteed minimum pensions (within the meaning of that Act). F72]

Definitions used in section 66 4

sex equality clause

“sex equality clause” has the meaning given in section 66;

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

“sex equality rule” has the meaning given in section 67;

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

“enactment” means an enactment contained in—

(a)

an Act of Parliament,

(b)

an Act of the Scottish Parliament,

(c)

an Act or Measure of the National Assembly for Wales, or

(d)

subordinate legislation;

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

Cases considering section 66 22

Walker v Co-Operative Group Ltd & Anor

[2020] EWCA Civ 1075 · 14 August 2020Defines

Applies the sex equality clause once equal work is established, subject to the material factor defence. As at February 2015, the clause would have modified the claimant’s contract unless section 69 was made out. (see paras [20]; [60]) Applies the statutory treatment of employment terms as including a sex equality clause where one is absent. The court used this as the consequence of proving equal work. (see paras [20]; [60]) Defines the modifying effect of the sex equality clause on less favourable or absent corresponding terms. The court applied that consequence subject to the section 69 defence. (see paras [20]; [60])

McNeil & Ors v Revenue And Customs

[2019] EWCA Civ 1112 · 3 July 2019Interprets

The sex equality clause modifies a less favourable term so that it is no less favourable than the corresponding comparator term. The court treated basic pay as the relevant term. (see paras. [8]; [79]-[81]) Cited only. Cited only. Cited only.

Ali v Capita Customer Management Ltd (Rev 2)

[2019] EWCA Civ 900 · 24 May 2019Interprets

Section 66 implies a sex equality clause into terms of work. The Court held that Mr Hextall’s claim was in substance an equal-terms claim, although the clause could not operate because of the pregnancy and childbirth exception. (see paras [86]-[107]) Section 66(2)(a) permits a less favourable term to be modified by reference to a corresponding term. The Court held that the corresponding entitlement could be adapted to Mr Hextall’s circumstances and did not need to be identical in wording. (see paras [96]-[105]) Section 66(2)(b) was considered as the alternative mechanism for including a corresponding beneficial term. The Court held that the difficulty of formulating the adapted term did not prevent the clause from operating in principle. (see paras [96]-[104])

2 more judgments, and what each says about section 66, are in the case-law panel in the full Act.

Explanatory note

222.This section requires that a sex equality clause be read into the terms under which people are employed. The effect of this is that any term in the contract which is less favourable than that of the comparator of the opposite sex is modified so as to ensure that both have the same effect. Where the comparator benefits from a term which is not available to the employee, the effect of the sex equality clause is to include such a term in the employee’s contract of employment.

223.A sex equality clause will operate similarly on the terms of a person who is an appointee to an office or a member of the armed forces, as it does in relation to an employee.

224.Subsection (3) is intended to ensure that the provisions relating to equality of terms at work and the provisions governing pension schemes in sections 67 and 68 operate effectively together so that action can be taken against an employer as it could against a trustee, to ensure, for example that a defence that operates in relation to one, will operate in relation to the other.

225.Where a job evaluation study has rated the work of an employee and comparator as equivalent, the equality clause will give the employee the benefit of all of the comparator’s terms, including those which have not been determined by the rating of the work.

226.This section is designed to replicate the effect of definitions contained in the Equal Pay Act 1970.

All the explanatory notes for the Act

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F71Words in s. 66(2) inserted (coming into force in accordance with reg. 1(b) of the amending S.I.) by The Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023 (S.I. 2023/1308), reg. 3(3)(a) this amendment (inserted text) is marked as yet to come into force, see the commentary.
  2. F72S. 66(5)(6) inserted (coming into force in accordance with reg. 1(b) of the amending S.I.) by The Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023 (S.I. 2023/1308), reg. 3(3)(b) this amendment (inserted text) is marked as yet to come into force, see the commentary.