Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

(2)
If the protected characteristic is disability, the circumstances relating to a case
include a person’s abilities.
(3)
If the protected characteristic is sexual orientation, the fact that one person
(whether or not the person referred to as B) is a civil partner while another is
married is not a material difference between the circumstances relating to each
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case.
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References to particular strands of discrimination
(1)
Age discrimination is—
(a)
discrimination within section 13 because of age;
(b)
discrimination within section 18 where the relevant protected
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characteristic is age.
(2)
Disability discrimination is—
(a)
discrimination within section 13 because of disability;
(b)
discrimination within section 14;
(c)
discrimination within section 18 where the relevant protected
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characteristic is disability;
(d)
discrimination within section 20.
(3)
Gender reassignment discrimination is—
(a)
discrimination within section 13 because of gender reassignment;
(b)
discrimination within section 15;
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(c)
discrimination within section 18 where the relevant protected
characteristic is gender reassignment.
(4)
Marriage and civil partnership discrimination is—
(a)
discrimination within section 13 because of marriage and civil
partnership;
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(b)
discrimination within section 18 where the relevant protected
characteristic is marriage and civil partnership.
(5)
Pregnancy and maternity discrimination is discrimination within section 16 or
17.
(6)
Race discrimination is—
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(a)
discrimination within section 13 because of race;
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Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

Clause 24: Harassment
Effect
100. This clause defines what is meant by harassment for the purposes of the Bill. There
are three types of harassment. The first type, which applies to all the protected characteristics
apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted
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conduct that has the purpose or effect of creating an intimidating, hostile, degrading
humiliating or offensive environment for the complainant or violating the complainant’s
dignity. The second type, sexual harassment is unwanted conduct of a sexual nature where
this has the same purpose or effect as the first type of harassment. The third type is treating
someone less favourably than another because they have either submitted or failed to submit to
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sexual harassment, or harassment related to sex or gender reassignment.
Background
101. Current legislation provides freestanding protection against harassment, but this
protection is not uniform for the different protected characteristics. This clause is aimed at
achieving uniformity of approach across all protected characteristics and in all fields where the
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main type of harassment described above is prohibited. Courts and tribunals will continue to
be required to balance competing rights on the facts of a particular case; this would include
consideration of the value of freedom of expression (as set out in Article 10 of the European
Convention on Human Rights) and of academic freedom.
Examples
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• A white worker who sees a black colleague being subjected to racially abusive
language could have a case of harassment if the language also causes an offensive
environment for her.
• An employer who displayed any material of a sexual nature, such as a topless
calendar, may be harassing her employees where this makes the workplace an
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offensive place to work for any employee, female or male.
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Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

(b)
discrimination within section 18 where the relevant protected
characteristic is race.
(7)
Religious or belief-related discrimination is—
(a)
discrimination within section 13 because of religion or belief;
(b)
discrimination within section 18 where the relevant protected
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characteristic is religion or belief.
(8)
Sex discrimination is—
(a)
discrimination within section 13 because of sex;
(b)
discrimination within section 18 where the relevant protected
characteristic is sex.
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(9)
Sexual orientation discrimination is—
(a)
discrimination within section 13 because of sexual orientation;
(b)
discrimination within section 18 where the relevant protected
characteristic is sexual orientation.
Other prohibited conduct
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24
Harassment
(1)
A person (A) harasses another (B) if—
(a)
A engages in unwanted conduct related to a relevant protected
characteristic which has the purpose or effect mentioned in subsection
(2),
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(b)
A engages in any form of unwanted verbal, non-verbal or physical
conduct of a sexual nature that has that purpose or effect, or
(c)
because of B’s rejection of or submission to conduct (whether or not of
A), A treats B less favourably than A would treat B if B had not rejected
or submitted to the conduct.
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(2)
The purpose or effect is—
(a)
violating B’s dignity, or
(b)
creating an intimidating, hostile, degrading, humiliating or offensive
environment for B.
(3)
In deciding whether conduct has that effect, each of the following must be
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taken into account—
(a)
the perception of B;
(b)
the other circumstances of the case;
(c)
whether it is reasonable for the conduct to have that effect.
(4)
For the purposes of subsection (1)(c), the conduct is—
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(a)
conduct mentioned in subsection (1)(a), if the relevant protected
characteristic is gender reassignment or sex;
(b)
conduct mentioned in subsection (1)(b).
(5)
The relevant protected characteristics are—
age;
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disability;
gender reassignment;
race;
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Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

• A shopkeeper propositions one of his shop assistants, she rejects his advances and
then is turned down for promotion which she believes she would have got if she had
accepted her boss’s advances. The shop assistant would have a claim of harassment.
Clause 25: Victimisation
Effect
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102. This clause defines what conduct amounts to victimisation under the Bill. It provides
that victimisation takes place where one person treats another badly because he or she in good
faith has taken or supported any action taken for the purpose of the Bill, including in relation
to any alleged breach of its provisions. It also provides that victimisation takes place where
one person treats another badly because he or she is suspected of having done this or of
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intending to do this.
103. A person is not protected from victimisation where he or she maliciously makes or
supports an untrue complaint.
104. Only an individual can bring a claim for victimisation.
Background
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105. This clause replaces similar provisions in current legislation. However, under the Bill
victimisation is technically no longer treated as a form of discrimination, so there is no longer
a need to compare treatment of an alleged victim with that of a person who has not made or
supported a complaint under the Bill.
Examples
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• A woman makes a complaint of sex discrimination against her employer. As a result,
she is denied promotion. The denial of promotion would amount to victimisation.
• A gay man sues a publican for persistently treating him less well than heterosexual
customers. Because of this, the publican bars him from the pub altogether. This would
be victimisation.
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• An employer threatens to dismiss a staff member because he thinks she intends to
support a colleague’s sexual harassment claim. This threat could amount to
victimisation.
• A man with a grudge against his employer knowingly gives false evidence in a
colleague’s discrimination claim against the employer. He is subsequently dismissed
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for supporting the claim. His dismissal would not amount to victimisation because of
his untrue and malicious evidence.
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Equality Bill
Part 3 — Services and public functions

religion or belief;
sex;
sexual orientation.
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Victimisation
(1)
A person (A) victimises another person (B) if A subjects B to a detriment
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because—
(a)
B does a protected act, or
(b)
A believes that B has done, or may do, a protected act.
(2)
Each of the following is a protected act—
(a)
bringing proceedings under this Act;
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(b)
giving evidence or information in connection with proceedings under
this Act;
(c)
doing any other thing for the purposes of or in connection with this Act;
(d)
making an allegation (whether or not express) that A or another person
has contravened this Act.
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(3)
Giving false evidence or information, or making a false allegation, is not a
protected act if the evidence or information is given, or the allegation is made,
in bad faith.
(4)
This section applies only where the person subjected to a detriment is an
individual.
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(5)
The reference to contravening this Act includes a reference to committing a
breach of an equality clause or rule.
Part 3
Services and public functions
Preliminary
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Equality Bill
Part 3 — Services and public functions

Part 3: services and public functions
Clause 26: Application of this Part
Effect
106. This clause provides that this Part of the Bill, which prohibits discrimination,
harassment and victimisation by people who supply services (which includes goods and
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facilities) or perform public functions, does not apply to discrimination, harassment or
victimisation of people in those circumstances because they are married or in a civil
partnership or because of age if they are under 18.
107. It also states that, if an act of discrimination, harassment or victimisation is made
unlawful by other Parts of the Bill covering premises, work or education, then those
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provisions, rather than the provisions covering services and public functions, apply. Similarly,
if the act in question results in a breach of an equality clause in a person’s terms of work or a
non-discrimination rule in an occupational pension scheme, this Part will not apply.
Background
108. This clause generally reflects the position in current legislation. However, since the
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prohibition on discrimination because of age in services and public functions will not be
extended to the under 18s, this clause explains that the provisions in this Part do not apply to
under 18s.
Clause 27: Provision of services, etc.
Effect
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109. This clause makes it unlawful to discriminate against, harass or victimise a person
because of a protected characteristic when providing services (which includes goods and
facilities). The person is protected both when requesting a service and during the course of
being provided with a service.
110. It also makes it unlawful to discriminate against, harass or victimise a person when
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exercising a public function which does not involve the provision of a service. Examples of
such public functions include law enforcement and revenue raising and collection. Public
functions which involve the provision of a service, for example, medical treatment on the
NHS, are covered by the provisions dealing with services.
111. It also imposes the duty to make reasonable adjustments set out in clause 19 in relation
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to providing services and exercising public functions. A person will be considered to have
discriminated against a disabled person if he or she fails to comply with the duty to make
reasonable adjustments.
112. However, the prohibition on harassment when providing services or exercising public
functions does not cover sexual orientation or religion or belief.
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113. The prohibitions in this clause apply, in relation to race or religion or belief, to any
actions taken in connection with the grant of entry clearance to enter the United Kingdom,
even if the act in question takes place outside the United Kingdom.
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Equality Bill
Part 3 — Services and public functions

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Application of this Part
(1)
This Part does not apply to the protected characteristic of—
(a)
age, so far as relating to persons who have not attained the age of 18;
(b)
marriage and civil partnership.
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(2)
This Part does not apply to discrimination, harassment or victimisation—
(a)
that is prohibited by Part 4 (premises), 5 (work) or 6 (education), or
(b)
that would be so prohibited but for an express exception.
(3)
For the purposes of subsection (2)(b), section 30(3) is not an express exception.
(4)
This Part does not apply to—
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(a)
a breach of an equality clause or rule;
(b)
anything that would be a breach of an equality clause or rule but for
section 64 or Part 2 of Schedule 7;
(c)
a breach of a non-discrimination rule.
Provision of services, etc.
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Provision of services, etc.
(1)
A person (a “service-provider”) concerned with the provision of a service to the
public or a section of the public (for payment or not) must not discriminate
against a person requiring the service by not providing the person with the
service.
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(2)
A service-provider (A) must not, in providing the service, discriminate against
a person (B)—
(a)
as to the terms on which A provides the service to B;
(b)
by terminating the provision of the service to B;
(c)
by subjecting B to any other detriment.
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(3)
A service-provider must not, in relation to the provision of the service,
harass—
(a)
a person requiring the service, or
(b)
a person to whom the service-provider provides the service.
(4)
A service-provider must not victimise a person requiring the service by not
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providing the person with the service.
(5)
A service-provider (A) must not, in providing the service, victimise a person
(B)—
(a)
as to the terms on which A provides the service to B;
(b)
by terminating the provision of the service to B;
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(c)
by subjecting B to any other detriment.
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