(1)The relevant sex discrimination provision has no effect in relation to a term of A's that—
(a)is modified by, or included by virtue of, a sex equality clause or rule, or
(b)would be so modified or included but for section 69 or Part 2 of Schedule 7.
(2)Neither of the following is sex discrimination for the purposes of the relevant sex discrimination provision—
(a)the inclusion in A's terms of a term that is less favourable as referred to in section 66(2)(a);
(b)the failure to include in A's terms a corresponding term as referred to in section 66(2)(b).
(3)The relevant sex discrimination provision is, in relation to work of a description given in the first column of the table, the provision referred to in the second column so far as relating to sex.
| Description of work
| Provision
|
|---|
| Employment |
Section 39(2) |
| Appointment to a personal office |
Section 49(6) |
| Appointment to a public office |
Section 50(6) |
Cases considering section 70 6
[2019] EWCA Civ 900 · 24 May 2019Disapplies
Section 70 makes the equal-terms and sex-discrimination provisions mutually exclusive for terms modified or included by the sex equality clause, or that would be so modified but for an exception. The Court held that Mr Hextall could not recast the equal-terms complaint as indirect discrimination. (see paras [108]-[110])
Section 70(2)(a) prevents the inclusion of a less favourable term through the sex equality clause from being treated as sex discrimination under section 39(2). The Court applied it to bar Mr Hextall’s indirect claim. (see para [110])
[2017] UKEAT 0092_16_0411 · 5 January 2017
The court held that the effect of section 70 raised a substantial and arguable jurisdictional point. If the provision excluded the discrimination finding, the Employment Tribunal had made a decision it lacked power to make. This possible consequence carried considerable weight in favour of amendment. (see paras [6]; [19]; [21])
The proposed amended ground relied on subsections 70(1) and (2) to contend that the discrimination provisions had no effect in this equal-pay case. The court accepted that the contention was substantial and arguable for amendment purposes, but left its merits for further argument. (see paras [11]-[13]; [19])
[2016] UKEAT 249_15_903 · 9 March 2016Disapplies
Section 70 excludes a discrimination claim concerning contractual terms which are addressed by a sex equality clause, including terms affording special treatment connected with pregnancy or childbirth. It was central to the conclusion that the section 19 claim could not be brought (see paras [22]-[23]).
What each judgment says about section 70 is in the case-law panel in the full Act.
241.This section ensures that the sex discrimination provisions of the Act do not apply where an equality clause or rule operates (or would operate in the absence of a defence of material factor or the exceptions set out in Part 2 of Schedule 7).
242.The sex discrimination provisions prohibit sex discrimination in relation to non-contractual pay and benefits such as promotion, transfer and training and in relation to offers of employment or appointment.
243.The equality of terms provisions operate only in relation to the terms of a contract of employment, the terms of appointment to a personal or public office and the terms of service of members of the armed forces.
244.This provision brings together sex discrimination and equality of terms provisions previously found in the Equal Pay Act 1970 and the Sex Discrimination Act 1975 and explains how they work together.