|
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| |
| |
• A Minister may decide to impose a specific duty which requires contracting |
| |
authorities to set out how they will use their procurement functions to better meet the |
| |
requirements of the public sector equality duty. This might lead a hospital in an |
| |
ethnically diverse area which outsources its catering to identify a need to put |
| |
conditions in the contract that Halal and Kosher food is made available. |
| 5 |
| |
| |
495. This clause is designed to make it clear that the duties imposed by or under Chapter 1 |
| |
of Part 11 do not create any private law rights for individuals. These duties, are, however, |
| |
enforceable by way of judicial review. |
| 10 |
| |
496. This clause is new, but it reflects the position under current legislation. |
| |
| |
• A local council fails to give due regard to the requirements of the public sector |
| |
equality duty when deciding to stop funding a local women’s refuge. An individual |
| 15 |
would not be able to sue the local council as a result and claim compensation. They |
| |
would need to consider whether to pursue judicial review proceedings. |
| |
Clause 151: Interpretation |
| |
| |
497. This clause defines the terms used in this Chapter to refer to devolved issues. |
| 20 |
498. The other clauses in this Chapter refer to relevant Welsh and Scottish authorities, |
| |
cross-border Welsh and Scottish authorities and devolved Welsh and Scottish functions. This |
| |
clause explains what those terms mean. |
| |
| |
|
| |
| |
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(c) | the Scottish Ministers, where the original duty was imposed by |
| |
regulations made by the Scottish Ministers. |
| |
| |
A failure in respect of a performance of a duty imposed by or under this |
| |
Chapter does not confer a cause of action at private law. |
| 5 |
| |
(1) | This section applies for the purposes of this Chapter. |
| |
(2) | A relevant Welsh authority is a person whose functions— |
| |
(a) | are exercisable only in or as regards Wales, and |
| |
(b) | are wholly or mainly devolved Welsh functions. |
| 10 |
(3) | A cross-border Welsh authority is a person other than a relevant Welsh |
| |
authority who has any function that— |
| |
(a) | is exercisable in or as regards Wales, and |
| |
(b) | is a devolved Welsh function. |
| |
(4) | A function is a devolved Welsh function if it relates to— |
| 15 |
(a) | a matter in respect of which functions are exercisable by the Welsh |
| |
Ministers, the First Minister for Wales or the Counsel General to the |
| |
Welsh Assembly Government, or |
| |
(b) | a matter within the legislative competence of the National Assembly |
| |
| 20 |
(5) | A relevant Scottish authority is a public body, public office or holder of a public |
| |
| |
(a) | which is not a cross-border Scottish authority or the Scottish |
| |
Parliamentary Corporate Body, |
| |
(b) | whose functions are exercisable only in or as regards Scotland, and |
| 25 |
(c) | at least some of whose functions do not relate to reserved matters. |
| |
(6) | A cross-border Scottish authority is a cross-border public authority within the |
| |
meaning given by section 88(5) of the Scotland Act 1998. |
| |
| |
|
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| |
| |
Chapter 2: Positive action |
| |
Clause 152: Positive action: general |
| |
| |
499. This clause provides that the Bill does not prohibit the use of positive action measures |
| |
to alleviate disadvantage experienced by people who share a protected characteristic, reduce |
| 5 |
their under-representation in relation to particular activities, and meet their particular needs. It |
| |
will, for example, allow measures to be targeted to particular groups, including training to |
| |
enable them to gain employment, or health services to address their needs. Any such measures |
| |
must be a proportionate way of achieving the relevant aim. |
| |
500. The extent to which it is proportionate to take positive action measures which may |
| 10 |
result in people not having the relevant characteristic being treated less favourably will |
| |
depend, among other things, on the seriousness of the relevant disadvantage, the extremity of |
| |
need or under-representation and the availability of other means of countering them. This |
| |
provision will need to be interpreted in accordance with European law which limits the extent |
| |
to which the kind of action it permits will be allowed. |
| 15 |
501. To provide greater legal certainty about what action is proportionate in particular |
| |
circumstances, the clause contains a power to make regulations setting out action which is not |
| |
permitted under this clause. |
| |
502. If positive action measures are taken in recruitment or promotion under clause 153(3) |
| |
or the selection of political candidates under clause 99, those provisions will apply rather than |
| 20 |
| |
503. Should the provision allowing single-sex shortlists for the selection of political |
| |
candidates (99 (6)) be repealed, this clause will not permit action to be taken similar to that |
| |
permissible under that provision. |
| |
504. This clause does not allow any action to be taken that would be prohibited by other |
| 25 |
| |
| |
505. This clause is new. There are existing positive action provisions in current legislation, |
| |
but these apply to different protected characteristics in different ways and in some cases are |
| |
specific about the types of action they permit. This clause extends what is possible to the |
| 30 |
extent permitted by European law, and applies in relation to all protected characteristics. |
| |
| |
• Having identified that its white male pupils are underperforming at maths, a school |
| |
could run supplementary maths classes exclusively for them. |
| |
| |
|
| |
| |
| |
(7) | A function is a devolved Scottish function if it— |
| |
(a) | is exercisable in or as regards Scotland, and |
| |
(b) | does not relate to reserved matters. |
| |
(8) | Reserved matters has the same meaning as in the Scotland Act 1998. |
| |
| 5 |
| |
152 | Positive action: general |
| |
(1) | This section applies if a person (P) reasonably thinks that— |
| |
(a) | persons who share a protected characteristic suffer a disadvantage |
| |
connected to the characteristic, |
| 10 |
(b) | persons who share a protected characteristic have needs that are |
| |
different from the needs of persons who do not share it, or |
| |
(c) | participation in an activity by persons who share a protected |
| |
characteristic is disproportionately low. |
| |
(2) | This Act does not prohibit P from taking any action which is a proportionate |
| 15 |
means of achieving the aim of— |
| |
(a) | enabling or encouraging persons who share the protected characteristic |
| |
to overcome or minimise that disadvantage, |
| |
(b) | meeting those needs, or |
| |
(c) | enabling or encouraging persons who share the protected characteristic |
| 20 |
to participate in that activity. |
| |
(3) | Regulations may specify action, or descriptions of action, to which subsection |
| |
| |
(4) | This section does not apply to— |
| |
(a) | action within section 153(3), or |
| 25 |
(b) | anything that is permitted by virtue of section 99. |
| |
(5) | If section 99(7) is repealed by virtue of section 100, this section will not apply |
| |
to anything that would have been so permitted but for the repeal. |
| |
(6) | This section does not enable P to do anything that is prohibited by or under an |
| |
enactment other than this Act. |
| 30 |
| |
|
| |
| |
| |
• In response to a national survey which indicates that lesbians have an increased risk of |
| |
breast cancer due to lifestyle issues, such as being less likely to have children, less |
| |
likely to seek gynaecological care, a local NHS Trust could set up a breast cancer |
| |
screening programme targeted specifically at lesbian women. |
| |
Clause 153: Positive action: recruitment and promotion |
| 5 |
| |
506. This clause permits an employer to take a protected characteristic into consideration |
| |
when deciding who to recruit or promote, where people having the protected characteristic are |
| |
at a disadvantage or are under-represented. This can be done only where the candidates are |
| |
equally qualified, and the clause does not allow employers to have a policy of automatically |
| 10 |
treating people who share a protected characteristic more favourably than those who do not. |
| |
507. The clause defines recruitment broadly, so that for example offers of partnership or |
| |
pupillage, or tenancy in barristers’ chambers, are included. |
| |
| |
508. This clause is new. While current legislation allows employers to undertake a variety |
| 15 |
of positive action measures, for instance offering training and encouragement for certain forms |
| |
of work, it does not allow employers to take any form of positive action at the actual point of |
| |
recruitment or promotion. This clause extends what is possible to the extent permitted by |
| |
European law, and applies in relation to all protected characteristics. |
| |
| 20 |
• A police service which employs disproportionately low numbers of people from an |
| |
ethnic minority background identifies a number of equally qualified candidates for |
| |
recruitment and gives preferential selection to a candidate from an ethnic minority |
| |
background. This would not be unlawful, provided the comparative merits of other |
| |
candidates were also taken into consideration. |
| 25 |
• An employer offers a job to a woman on the basis that women are under-represented |
| |
in the company’s workforce when there was a male candidate who was more qualified. |
| |
This would be unlawful direct discrimination. |
| |
Part 12: Disabled persons: transport |
| |
| |
|
| |
| |
| |
| |
153 | Positive action: recruitment and promotion |
| |
(1) | This section applies if a person (P) reasonably thinks that— |
| |
(a) | persons who share a protected characteristic suffer a disadvantage |
| |
connected to the characteristic, or |
| 5 |
(b) | participation in an activity by persons who share a protected |
| |
characteristic is disproportionately low. |
| |
(2) | Part 5 (work) does not prohibit P from taking action within subsection (3) with |
| |
the aim of enabling or encouraging persons who share the protected |
| |
| 10 |
(a) | overcome or minimise that disadvantage, or |
| |
(b) | participate in that activity. |
| |
(3) | That action is treating a person (A) more favourably in connection with |
| |
recruitment or promotion than another person (B) because A has the protected |
| |
characteristic but B does not. |
| 15 |
(4) | But subsection (2) applies only if— |
| |
(a) | A is as qualified as B to be recruited or promoted, and |
| |
(b) | P does not have a policy of treating persons who share the protected |
| |
characteristic more favourably in connection with recruitment or |
| |
promotion than persons who do not share it. |
| 20 |
(5) | “Recruitment” means a process for deciding whether to— |
| |
(a) | offer employment to a person, |
| |
(b) | make contract work available to a contract worker, |
| |
(c) | offer a person a position as a partner in a firm or proposed firm, |
| |
(d) | offer a person a position as a member of an LLP or proposed LLP, |
| 25 |
(e) | offer a person a pupillage or tenancy in barristers’ chambers, |
| |
(f) | take a person as an advocate’s devil or offer a person membership of an |
| |
| |
(g) | offer a person an appointment to a personal office, |
| |
(h) | offer a person an appointment to a public office, recommend a person |
| 30 |
for such an appointment or approve a person’s appointment to a public |
| |
| |
(i) | offer a person a service for finding employment. |
| |
(6) | This section does not enable P to do anything that is prohibited by or under an |
| |
enactment other than this Act. |
| 35 |
| |
|
| |
| |
| |
| |
Clause 154: Taxi accessibility |
| |
| |
509. This clause contains a power for the Secretary of State to make regulations specifying |
| |
the technical standards applying to licensed taxis and imposing requirements on taxi drivers, |
| 5 |
to enable disabled people to access taxis safely, even when seated in a wheelchair, and be |
| |
carried in safety and reasonable comfort. It makes it an offence, punishable by a fine of up to |
| |
£1,000, for a driver of a regulated taxi to fail to comply with the requirements of the |
| |
| |
| 10 |
510. This clause is designed to replicate the effect of conditions in section 32 of the |
| |
Disability Discrimination Act 1995. |
| |
511. These conditions do not apply to taxis which are drawn by horses or other animals. |
| |
| |
• It would be an offence for a taxi driver not to comply with a requirement to have a |
| 15 |
ramp or other device to enable a disabled person in a wheelchair to access the taxi in |
| |
| |
• It would be an offence for a taxi driver not to comply with a requirement to ensure the |
| |
correct position of a wheelchair in the taxi so as to ensure the disabled person can |
| |
| 20 |
Clause 155: Designated transport facilities |
| |
| |
512. This clause enables the Secretary of State in England and Wales, or Scottish Ministers |
| |
in Scotland, to make regulations applying taxi provisions contained in or made under Chapter |
| |
| |
|
