Section 78
1
(1)
A person (A) does not contravene a provision mentioned in sub-paragraph
(2) by applying in relation to work a requirement to have a particular
protected characteristic, if A shows that, having regard to the nature or
context of the work—
(a) 15it is an occupational requirement,
(b)
the application of the requirement is a proportionate means of
achieving a legitimate aim, and
(c)
the person to whom A applies the requirement does not meet it (or
A has reasonable grounds for not being satisfied that the person
20meets it).
(2) The provisions are—
(a) section 36(1)(a) or (c) or (2)(b) or (c);
(b) section 38(1)(b);
(c) section 41(1)(a) or (c) or (2)(b) or (c);
(d) 25section 42(1)(a) or (c) or (2)(b) or (c);
(e) section 46(3)(a) or (c) or (6)(b) or (c);
(f) section 47(3)(a) or (c) or (6)(b) or (c);
(g) section 48(1).
(3)
The references in sub-paragraph (1) to a requirement to have a protected
30characteristic are to be read—
(a)
in the case of gender reassignment, as references to a requirement
not to be a transsexual person (and section 7(3) is accordingly to be
ignored);
(b)
in the case of marriage and civil partnership, as references to a
35requirement not to be married or a civil partner (and section 8(2) is
accordingly to be ignored).
(4)
In the case of a requirement to be of a particular sex, sub-paragraph (1) has
effect as if in paragraph (c), the words from “(or” to the end were omitted.
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2
(1)
A person (A) does not contravene a provision mentioned in sub-paragraph
(2) by applying in relation to employment a requirement to which sub-
paragraph (4) applies if A shows that—
(a) 5the employment is for the purposes of an organised religion,
(b)
the application of the requirement engages the compliance or non-
conflict principle, and
(c)
the person to whom A applies the requirement does not meet it (or
A has reasonable grounds for not being satisfied that the person
10meets it).
(2) The provisions are—
(a) section 36(1)(a) or (c) or (2)(b) or (c);
(b) section 46(3)(a) or (c) or (6)(b) or (c);
(c) section 47(3)(a) or (c) or (6)(b) or (c);
(d) 15section 48(1).
(3)
A person does not contravene section 50(1) or (2)(a) or (b) by applying in
relation to a relevant qualification (within the meaning of that section) a
requirement to which sub-paragraph (4) applies if the person shows that—
(a)
the qualification is for the purposes of employment mentioned in
20sub-paragraph (1)(a), and
(b)
the application of the requirement engages the compliance or non-
conflict principle.
(4) This sub-paragraph applies to—
(a) a requirement to be of a particular sex;
(b) 25a requirement not to be a transsexual person;
(c) a requirement not to be married or a civil partner;
(d)
a requirement not to be married to, or the civil partner of, a person
who has a living former spouse or civil partner;
(e)
a requirement relating to circumstances in which a marriage or civil
30partnership came to an end;
(f) a requirement related to sexual orientation.
(5)
The application of a requirement engages the compliance principle if the
application is a proportionate means of complying with the doctrines of the
religion.
(6)
35The application of a requirement engages the non-conflict principle if,
because of the nature or context of the work, the application is a
proportionate means of avoiding conflict with the strongly held religious
convictions of a significant number of the religion’s followers.
(7)
A reference to employment includes a reference to an appointment to a
40personal or public office.
(8)
Employment is for the purposes of an organised religion only if the
employment wholly or mainly involves—
(a)
leading or assisting in the observation of liturgical or ritualistic
practices of the religion, or
(b)
45promoting or explaining the doctrine of the religion (whether to
followers of the religion or to others).
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(9)
In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1)
has effect as if in paragraph (c) the words from “(or” to the end were omitted.
3
A person (A) with an ethos based on religion or belief does not contravene a
5provision mentioned in paragraph 1(2) by applying in relation to work a
requirement to be of a particular religion or belief if A shows that, having
regard to that ethos and to the nature or context of the work—
(a) it is an occupational requirement,
(b)
the application of the requirement is a proportionate means of
10achieving a legitimate aim, and
(c)
the person to whom A applies the requirement does not meet it (or
A has reasonable grounds for not being satisfied that the person
meets it).
4
(1)
15A person does not contravene section 36(1)(a) or (c) or (2)(b) by applying in
relation to service in the armed forces a relevant requirement if the person
shows that the application is a proportionate means of ensuring the combat
effectiveness of the armed forces.
(2) A relevant requirement is—
(a) 20a requirement to be a man;
(b) a requirement not to be a transsexual person.
(3)
This Part of this Act, so far as relating to age or disability, does not apply to
service in the armed forces; and section 52, so far as relating to disability,
does not apply to work experience in the armed forces.
5
(1)
A person (A) does not contravene section 52(1)(b) or (c) or (2)(a) or (b) if A
shows that A’s treatment of another person relates only to work the offer of
which could be refused to that other person in reliance on paragraph 1, 2, 3
or 4.
(2)
30A person (A) does not contravene section 52 if A shows that A’s treatment
of another person relates only to training for work of a description
mentioned in sub-paragraph (1).
(3)
A person (A) does not contravene section 52(1)(b) or (c) or (2)(a) or (b) if A
shows that—
(a)
35A acted in reliance on a statement made to A by a person with the
power to offer the work in question to the effect that, by virtue of
sub-paragraph (1) or (2), A’s action would be lawful, and
(b) it was reasonable for A to rely on the statement.
(4)
A person commits an offence by knowingly or recklessly making a
40statement such as is mentioned in sub-paragraph (3)(a) which in a material
respect is false or misleading.
(5)
A person guilty of an offence under sub-paragraph (4) is liable on summary
conviction to a fine not exceeding level 5 on the standard scale.
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6 (1) This paragraph applies for the purposes of this Part of this Schedule.
(2)
A reference to contravening a provision of this Act is a reference to
contravening that provision by virtue of section 13.
(3)
5A reference to work is a reference to employment, contract work, a position
as a partner or as a member of an LLP, or an appointment to a personal or
public office.
(4) A reference to a person includes a reference to an organisation.
(5)
A reference to section 36(2)(b), 41(2)(b), 42(2)(b), 46(6)(b) or 47(6)(b) is to be
10read as a reference to that provision with the omission of the words “or for
receiving any other benefit, facility or service”.
(6)
A reference to section 36(2)(c), 41(2)(c), 42(2)(c), 46(6)(c), 47(6)(c), 50(2)(a) or
52(2)(c) (dismissal, etc.) does not include a reference to that provision so far
as relating to sex.
(7)
15The reference to paragraph (b) of section 38(1), so far as relating to sex, is to
be construed as if that paragraph read—
“(b) by not allowing the worker to do the work.”
7
For the purposes of this Part of this Schedule, a reference to an age
contravention is a reference to a contravention of this Part of this Act, so far
as relating to age.
8
(1)
25It is not an age contravention to dismiss a relevant worker at or over the age
of 65 if the reason for the dismissal is retirement.
(2) Each of the following is a relevant worker—
(a)
an employee within the meaning of section 230(1) of the
Employment Rights Act 1996;
(b) 30a person in Crown employment;
(c) a relevant member of the House of Commons staff;
(d) a relevant member of the House of Lords staff.
(3)
Retirement is a reason for dismissal only if it is a reason for dismissal by
virtue of Part 10 of the Employment Rights Act 1996.
9
(1)
A person does not contravene section 36(1)(a) or (c), so far as relating to age,
in a case where the other person—
(a)
has attained the age limit, or would have attained it before the end of
six months beginning with the date on which the application for the
40employment had to be made, and
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(b)
would, if recruited for the employment, be a relevant worker within
the meaning of paragraph 8.
(2) The age limit is whichever is the greater of—
(a) the age of 65, and
(b) 5the normal retirement age in the case of the employment concerned.
(3)
The reference to the normal retirement age is to be construed in accordance
with section 98ZH of the Employment Rights Act 1996.
10
(1)
It is not an age contravention for a person (A) to put a person (B) at a
10disadvantage when compared with another (C), in relation to the provision
of a benefit, facility or service in so far as the disadvantage is because B has
a shorter period of service than C.
(2)
If B’s period of service exceeds 5 years, A may rely on sub-paragraph (1)
only if A reasonably believes that doing so fulfils a business need.
(3) 15A person’s period of service is whichever of the following A chooses—
(a)
the period for which the person has been working for A at or above
a level (assessed by reference to the demands made on the person)
that A reasonably regards as appropriate for the purposes of this
paragraph, or
(b) 20the period for which the person has been working for A at any level.
(4)
The period for which a person has been working for A must be based on the
number of weeks during the whole or part of which the person has worked
for A.
(5) But for that purpose A may, so far as is reasonable, discount—
(a) 25periods of absence;
(b) periods that A reasonably regards as related to periods of absence.
(6)
For the purposes of sub-paragraph (3)(b), a person is to be treated as having
worked for A during any period in which the person worked for a person
other than A if—
(a)
30that period counts as a period of employment with A as a result of
section 218 of the Employment Rights Act 1996, or
(b)
if sub-paragraph (a) does not apply, that period is treated as a period
of employment by an enactment pursuant to which the person’s
employment was transferred to A.
(7)
35For the purposes of this paragraph, the reference to a benefit, facility or
service does not include a reference to a benefit, facility or service which may
be provided only by virtue of a person’s ceasing to work.
11
(1)
It is not an age contravention for a person to pay a young worker (A) at a
40lower rate than that at which the person pays an older worker (B) if—
(a)
the hourly rate for the national minimum wage for a person of A’s
age is lower than that for a person of B’s age, and
(b) the rate at which A is paid is below the single hourly rate.
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(2)
A young worker is a person who qualifies for the national minimum wage
at a lower rate than the single hourly rate; and an older worker is a person
who qualifies for the national minimum wage at a higher rate than that at
which the young worker qualifies for it.
(3)
5The single hourly rate is the rate prescribed under section 1(3) of the
National Minimum Wage Act 1998.
12
(1)
It is not an age contravention for a person to pay an apprentice who does not
qualify for the national minimum wage at a lower rate than the person pays
10an apprentice who does.
(2) An apprentice is a person who—
(a) is employed under a contract of apprenticeship, or
(b)
as a result of provision made by virtue of section 3(2)(a) of the
National Minimum Wage Act 1998 (persons not qualifying), is
15treated as employed under a contract of apprenticeship.
13
(1)
It is not an age contravention for a person to give a qualifying employee an
enhanced redundancy payment of an amount less than that of an enhanced
redundancy payment which the person gives to another qualifying
20employee, if each amount is calculated on the same basis.
(2)
It is not an age contravention to give enhanced redundancy payments only
to those who are qualifying employees by virtue of sub-paragraph (3)(a) or
(b).
(3) A person is a qualifying employee if the person—
(a)
25is entitled to a redundancy payment as a result of section 135 of the
Employment Rights Act 1996,
(b)
agrees to the termination of the employment in circumstances where
the person would, if dismissed, have been so entitled,
(c)
would have been so entitled but for section 155 of that Act
30(requirement for two years’ continuous employment), or
(d)
agrees to the termination of the employment in circumstances where
the person would, if dismissed, have been so entitled but for that
section.
(4)
An enhanced redundancy payment is a payment the amount of which is,
35subject to sub-paragraphs (5) and (6), calculated in accordance with section
162(1) to (3) of the Employment Rights Act 1996.
(5) A person making a calculation for the purposes of sub-paragraph (4)—
(a) may treat a week’s pay as not being subject to a maximum amount;
(b)
may treat a week’s pay as being subject to a maximum amount above
40that for the time being specified in section 227(1) of the Employment
Rights Act 1996;
(c)
may multiply the appropriate amount for each year of employment
by a figure of more than one.
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(6)
Having made a calculation for the purposes of sub-paragraph (4) (whether
or not in reliance on sub-paragraph (5)), a person may multiply the amount
calculated by a figure of more than one.
(7)
In sub-paragraph (5), “the appropriate amount” has the meaning given in
5section 162 of the Employment Rights Act 1996, and “a week’s pay” is to be
read with Chapter 2 of Part 14 of that Act.
(8)
For the purposes of sub-paragraphs (4) to (6), the reference to “the relevant
date” in subsection (1)(a) of section 162 of that Act is, in the case of a person
who is a qualifying employee by virtue of sub-paragraph (3)(b) or (d), to be
10read as reference to the date of the termination of the employment.
14
(1)
This paragraph applies if a person (A) takes early retirement because of ill
health.
(2)
It is not an age contravention to provide A with life assurance cover for the
15period starting when A retires and ending—
(a)
if there is a normal retirement age, when A attains the normal
retirement age;
(b) in any other case, when A attains the age of 65.
(3)
The normal retirement age in relation to A is the age at which, when A
20retires, persons holding comparable positions in the same undertaking are
normally required to retire.
15
(1)
A person does not contravene a relevant provision, so far as relating to age,
only by providing, or making arrangements for or facilitating the provision
25of, care for children of a particular age group.
(2) The relevant provisions are—
(a) section 36(2)(b);
(b) section 38(1)(c);
(c) section 41(2)(b);
(d) 30section 42(2)(b);
(e) section 44(2)(b);
(f) section 45(2)(b);
(g) section 46(6)(b);
(h) section 47(6)(b);
(i) 35section 54(2)(a);
(j) section 55(3)(a).
(3) Facilitating the provision of care for a child includes—
(a) paying for some or all of the cost of the provision;
(b)
helping a parent of the child to find a suitable person to provide care
40for the child;
(c)
enabling a parent of the child to spend more time providing care for
the child or otherwise assisting the parent with respect to the care
that the parent provides for the child.
(4) A child is a person who has not attained the age of 17.
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(5) A reference to care includes a reference to supervision.
16
(1)
A Minister of the Crown may by order provide that it is not an age
contravention for an employer to maintain or use, with respect to
5contributions to personal pension schemes, practices, actions or decisions
relating to age which are of a specified description.
(2)
An order authorising the use of 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.
(3)
10“Personal pension scheme” has the meaning given in section 1 of the Pension
Schemes Act 1993; and “employer”, in relation to a personal pension scheme,
has the meaning given in section 318(1) of the Pensions Act 2004.
17
(1)
A person does not contravene section 36(1)(b) or (2), so far as relating to
pregnancy and maternity, by depriving a woman who is on maternity leave
of any benefit from the terms of her employment relating to pay.
(2)
The reference in sub-paragraph (1) to benefit from the terms of a woman’s
20employment relating to pay does not include a reference to—
(a)
maternity-related pay (including maternity-related pay that is
increase-related),
(b)
pay (including increase-related pay) in respect of times when she is
not on maternity leave, or
(c)
25pay by way of bonus in respect of times when she is on compulsory
maternity leave.
(3)
For the purposes of sub-paragraph (2), pay is increase-related in so far as it
is to be calculated by reference to increases in pay that the woman would
have received had she not been on maternity leave.
(4)
30A reference to terms of her employment is a reference to terms of her
employment that are not in her contract of employment, her contract of
apprenticeship or her contract to do work personally.
(5) “Pay” means benefits—
(a)
that consist of the payment of money to an employee by way of
35wages or salary, and
(b)
that are not benefits whose provision is regulated by the contract
referred to in sub-paragraph (4).
(6) “Maternity-related pay” means pay to which a woman is entitled—
(a) as a result of being pregnant, or
(b) 40in respect of times when she is on maternity leave.
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18
(1)
A person does not contravene this Part of this Act, so far as relating to sexual
orientation, by doing anything which prevents or restricts a person who is
not married from having access to a benefit, facility or service—
(a)
5the right to which accrued before 5 December 2005 (the day on which
section 1 of the Civil Partnership Act 2004 came into force), or
(b) which is payable in respect of periods of service before that date.
(2)
A person does not contravene this Part of this Act, so far as relating to sexual
orientation, by providing married persons and civil partners (to the
10exclusion of all other persons) with access to a benefit, facility or service.
19
(1)
A does not contravene a provision mentioned in sub-paragraph (2) in
relation to the provision of a benefit, facility or service to B if A is concerned
with the provision (for payment or not) of a benefit, facility or service of the
15same description to the public.
(2) The provisions are—
(a) section 36(2) and (4);
(b) sections 41(2) and (6) and 42(2) and (6);
(c) sections 46(6) and (8) and 47(6), (7), (9) and (10).
(3) 20Sub-paragraph (1) does not apply if—
(a)
the provision by A to the public differs in a material respect from the
provision by A to comparable persons,
(b) the provision to B is regulated by B’s terms, or
(c) the benefit, facility or service relates to training.
(4) 25“Comparable persons” means—
(a) in relation to section 36(2) or (4), the other employees;
(b) in relation to section 41(2) and (6), the other partners of the firm;
(c) in relation to section 42(2) and (6), the other members of the LLP;
(d)
in relation to section 46(6) or (8) or 47(6), (7), (9) or (10), persons
30holding offices or posts not materially different from that held by B.
(5) “B’s terms” means—
(a) the terms of B’s employment,
(b) the terms on which B has the position as a partner or member, or
(c) the terms of B’s appointment to the office.
(6)
35A reference to the public includes a reference to a section of the public which
includes B.
20
(1)
It is not a contravention of this Part, so far as relating to relevant
discrimination, to do anything in relation to an annuity, life insurance
40policy, accident insurance policy or similar matter involving the assessment
of risk if—
(a)
the thing is done by reference to actuarial or other data from a source
on which it is reasonable to rely, and
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(b) it is reasonable to do the thing.
(2) “Relevant discrimination” is—
(a) gender reassignment discrimination;
(b) marriage and civil partnership discrimination;
(c) 5pregnancy and maternity discrimination;
(d) sex discrimination.
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