Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Part 3 — Services and public functions

Background
114. Current legislation provides some protection from discrimination, harassment and
victimisation in the provision of services and the exercise of public functions. However, the
protection is not uniform for the different protected characteristics. For example, there is no
protection from discrimination in the exercise of public functions because of pregnancy and
5
maternity or because a person is intending to undergo, is undergoing or has undergone gender
reassignment. Also there is no protection for discrimination because of age, either in the
provision of services or in the exercise of public functions.
115. This clause replaces the existing provisions, and extends protection so that it is
generally uniform across all the protected characteristics covered by this Part. However, as
10
under existing law, there is no protection for harassment related to religion or belief or sexual
orientation in either the provision of services or the exercise of public functions.
116. Examples
• A man and two female friends plan a night out at a local night club. At the entrance
the man is charged £10 entry; the two women are charged £5 each. The owner explains
15
the night club is trying to attract more women and has decided to charge them half the
entrance fee. This would be direct sex discrimination.
A company which organises outdoor activity breaks requires protective headwear to be worn
for certain activities, such as white water rafting and rock climbing. This requirement could be
indirectly discriminatory against Sikhs unless it can be justified, for example on health and
20
safety grounds.
• A man who suffers from long-standing and serious health problems, including partial
paralysis and a severe sight impairment, is imprisoned. On his imprisonment, the man
is not allocated an adapted cell, despite being assessed as requiring one within 24
hours of arriving at prison. Instead, he is allocated a standard cell. This would be
25
discrimination resulting from a failure to make reasonable adjustments to take account
of a person’s disability.
• A black man goes into a bar to watch a football match. He is served a pint of beer and
takes a seat at an empty table. Whilst watching the football match the bartender and a
number of customers make racist remarks about some of the footballers on the pitch.
30
When the man complains he is then called a number of derogatory names. This would
be harassment because of race.
Clause 28: Ships and hovercraft
Effect
116. This clause provides that the services provisions (and for disability, the public
35
functions provisions) will only apply to ships and hovercraft in the way set out in regulations
made by a Minister of the Crown. Because ships and hovercraft may be constantly moving
between waters under the jurisdiction of different States or be outside the jurisdiction of any
State, such regulations are needed to give certainty for people who provide or receive services
in relation to ships and hovercraft about whether the services and public functions provisions
40
apply.
E20

Equality Bill
Part 3 — Services and public functions

(6)
A person must not, in the exercise of a public function that is not the provision
of a service to the public or a section of the public, do anything that constitutes
discrimination, harassment or victimisation.
(7)
A duty to make reasonable adjustments applies to—
(a)
a service-provider;
5
(b)
a person who exercises a public function that is not the provision of a
service to the public or a section of the public.
(8)
In the application of section 24 for the purposes of subsection (3), and
subsection (6) as it relates to harassment, neither of the following is a relevant
protected characteristic—
10
(a)
religion or belief;
(b)
sexual orientation.
(9)
In the application of this section, so far as relating to race or religion or belief,
to the granting of entry clearance (within the meaning of the Immigration Act
1971), it does not matter whether an act is done within or outside the United
15
Kingdom.
(10)
Subsection (9) does not affect the application of any other provision of this Act
to conduct outside England and Wales or Scotland.
Supplementary
28
Ships and hovercraft
20
(1)
This Part (except section 27(6)) applies only in such circumstances as are
prescribed in relation to—
(a)
transporting people by ship or hovercraft;
(b)
a service provided on a ship or hovercraft.
(2)
In the application of subsection (1) to disability discrimination, the words
25
“(except section 27(6))” are to be ignored.
(3)
It does not matter whether the ship or hovercraft is within or outside the
United Kingdom.
20

Equality Bill
Part 3 — Services and public functions

Background
117. Current legislation is specific on the territorial application of the services provisions,
dealing specifically with ships, aircraft and hovercraft (for example, section 36 of the Sex
Discrimination Act 1975 and section 27 of the Race Relations Act 1976). As the Bill is silent
on the territorial application of the services provisions regulations made under this clause will
5
ensure that there is clarity as to when and on which ships and hovercraft the services
provisions apply.
Clause 29: Interpretation and exceptions
Effect
118. This clause explains what is meant by the terms “provision of a service” and “public
10
function” in the Bill. The definition of a “public function” is that which applies for the
purposes of the Human Rights Act 1998. The public functions provisions apply only where
what is being done does not fall within the definition of a “service”.
119. This clause also explains that refusing to provide or not providing a service includes
providing a person with a service of different quality, or in a different way (for example hostile
15
or less courteous) or on less favourable terms than the service would normally be provided.
120. This clause provides that where an employer arranges for another person to provide a
service to a closed group of employees, then the members of that closed group are to be treated
as a section of the public for the purposes of their relationship with the service-provider. This
means that if the service-provider discriminates against members of that group, the
20
prohibitions in this Part will apply. However, the employer is not to be treated as a service-
provider, despite facilitating access to the service. Instead, his or her conduct in respect of his
or her employees is to be governed by the provisions in Part 5 (work).
121. Further details of how the reasonable adjustments duty applies in relation to providing
services and exercising public functions are contained in Schedule 2.
25
122. The exceptions which apply to this Part of the Bill are contained in Schedule 3.
Background
123. Much of what is contained in this clause has its origins in current legislation, but this
is now brought together in an interpretation clause rather than in the substantive provisions as
is the case in the current legislation. The subsection concerning employers arranging for
30
provision of services to their employees by another person is new.
Examples
• Services include the provision of day care, the running of residential care homes and
leisure centre facilities, whether provided by a private body or a local authority.
• Public functions, not involving the provision of a service, include licensing functions;
35
Government and local authority public consultation exercises; the provision of public
highways; planning permission decisions; and core functions of the prison service and
the probation service.
• The definition of refusing to provide a service covers, for example, a bank which has a
policy not to accept calls from customers through a third party. This could amount to
40
E21

Equality Bill
Part 3 — Services and public functions

(4)
“Ship” has the same meaning as in the Merchant Shipping Act 1995.
(5)
“Hovercraft” has the same meaning as in the Hovercraft Act 1968.
(6)
Nothing in this section affects the application of any other provision of this Act
to conduct outside England and Wales or Scotland.
29
Interpretation and exceptions
5
(1)
This section applies for the purposes of this Part.
(2)
A reference to the provision of a service includes a reference to the provision
of goods or facilities.
(3)
A reference to the provision of a service includes a reference to the provision
of a service in the exercise of a public function.
10
(4)
A public function is a function that is a function of a public nature for the
purposes of the Human Rights Act 1998.
(5)
Where an employer arranges for another person to provide a service only to
the employer’s employees—
(a)
the employer is not to be regarded as the service-provider, but
15
(b)
the employees are to be regarded as a section of the public.
(6)
A reference to a person requiring a service includes a reference to a person who
is seeking to obtain or use the service.
(7)
A reference to a service-provider not providing a person with a service
includes a reference to—
20
(a)
the service-provider not providing the person with a service of the
quality that the service-provider usually provides to the public (or the
section of it which includes the person), or
(b)
the service-provider not providing the person with the service in the
manner in which, or on the terms on which, the service-provider
25
usually provides the service to the public (or the section of it which
includes the person).
(8)
In relation to the provision of a service by either House of Parliament, the
service-provider is the Corporate Officer of the House concerned; and if the
service involves access to, or use of, a place in the Palace of Westminster which
30
members of the public are allowed to enter, both Corporate Officers are jointly
the service-provider.
(9)
Schedule 2 (reasonable adjustments) has effect.
(10)
Schedule 3 (exceptions) has effect.
21

Equality Bill
Part 3 — Services and public functions

indirect discrimination against a deaf person who uses a registered interpreter to call
the bank.
• An employer arranges for an insurer to provide a group health insurance scheme to his
employees. The insurer refuses to provide cover on the same terms to one of the
employees because she is a transsexual. This would be treated as direct discrimination
5
in the provision of services by the insurer against the employee in the same way as if
the insurance was available to the general public. However, if it was the employer,
rather than the insurer, who decided that the transsexual employee should not be able
to access the group health insurance scheme, such discrimination in the employee’s
access to benefits in the workplace would be covered by the provisions of Part 5
10
(work).
PART 4: PREMISES
Clause 30: Application of this Part
Effect
124. This clause provides that this Part of the Bill, which prohibits discrimination,
15
harassment and victimisation in relation to the disposal, management and occupation of
premises, does not make it unlawful to discriminate against, harass or victimise people in
those circumstances because they are married or in a civil partnership or because of age.
125. It also states that, if an act of discrimination, harassment or victimisation is made
unlawful by other Parts of the Bill covering work or education, then those provisions, rather
20
than the provisions covering premises, apply. Further, where accommodation is provided
either as a short-term let or where it is provided as part of a service or public function Part 3
(services and public functions) applies instead of this Part. 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 then these provisions will not apply.
25
Background
126. This provision broadly reflects the position in the current legislation, which gives
protection from discrimination in the disposal and management of premises across all the
protected characteristics with the exception of age and marriage and civil partnership.
Clause 31: Disposals, etc.
30
Effect
127. This clause makes it unlawful for a person who has the authority to dispose of
premises (for example, by selling, letting or subletting a property) to discriminate against or
victimise someone else in a number of ways including by offering the premises to them on less
favourable terms; by not letting or selling the premises to them or by treating them less
35
favourably, for example in relation to a council house waiting list.
128. It also makes it unlawful for a person with authority to dispose of premises to harass
someone who occupies or applies for them. The Bill does not however make it unlawful to
harass someone because of sexual orientation or religion or belief when disposing of premises.
E22

Equality Bill
Part 4 — Premises

Part 4
Premises
Preliminary
30
Application of this Part
(1)
This Part does not apply to the following protected characteristics—
5
(a)
age;
(b)
marriage and civil partnership.
(2)
This Part does not apply to discrimination, harassment or victimisation—
(a)
that is prohibited by Part 5 (work) or Part 6 (education), or
(b)
that would be so prohibited but for an express exception.
10
(3)
This Part does not apply to the provision of accommodation if the provision—
(a)
is generally for the purpose of short stays by individuals who live
elsewhere, or
(b)
is for the purpose only of exercising a public function or providing a
service to the public or a section of the public.
15
(4)
The reference to the exercise of a public function, and the reference to the
provision of a service, are to be construed in accordance with Part 3.
(5)
This Part does not apply to—
(a)
a breach of an equality clause or rule;
(b)
anything that would be a breach of an equality clause or rule but for
20
section 64 or Part 2 of Schedule 7;
(c)
a breach of a non-discrimination rule.
Disposal and management
31
Disposals, etc.
(1)
A person (A) who has the right to dispose of premises must not discriminate
25
against another (B)—
(a)
as to the terms on which A offers to dispose of the premises to B;
(b)
by not disposing of the premises to B;
(c)
in A’s treatment of B with respect to things done in relation to persons
seeking premises.
30
(2)
Where an interest in a commonhold unit cannot be disposed of unless a
particular person is a party to the disposal, that person must not discriminate
against a person by not being a party to the disposal.
22

Equality Bill
Part 4 — Premises

Background
129. This clause replaces similar provisions in current legislation.
Examples
• A landlord refuses to let a property to a prospective tenant because of her race. This is
direct discrimination when disposing of premises.
5
• A vendor offers her property to a prospective buyer who is disabled at a higher sale
price than she would to a non-disabled person, because of the person’s disability. This
is direct discrimination when disposing of premises.
Clause 32: Permission for disposal
Effect
10
130. This clause makes it unlawful for a person whose permission is needed to dispose of
premises (for example, to sell, manage, let or sub-let a property) to discriminate against or
victimise someone else by withholding that permission. It also makes it unlawful for such a
person to harass someone who seeks that permission, or someone to whom the property would
be sold or let if the permission were given. The Bill does not however make it unlawful to
15
harass someone because of sexual orientation or religion or belief by withholding permission
to dispose of premises.
131. This clause does not apply where permission to dispose of premises is refused by a
court in the context of legal proceedings.
Background
20
132. This clause replaces similar provisions in current legislation.
Examples
• A disabled tenant seeks permission from his landlord to sublet a room within his flat
to help him pay his rent. The landlord tells him that he cannot because he is disabled.
This is direct discrimination in permission for disposing of premises.
25
E23