(184-190)

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

(184-190)

Schedule 21 — Reasonable adjustments: supplementary

(a)
it is always reasonable for A to have to take steps to obtain the
consent, but
(b)
it is never reasonable for A to have to make the alteration before the
consent is obtained.
      (3)
In this Schedule, a binding obligation is a legally binding obligation in
relation to premises, however arising; but the reference to a binding
obligation in sub-paragraph (1)(a) or (c) does not include a reference to an
obligation imposed by a tenancy.
      (4)
The steps referred to in sub-paragraph (2)(a) do not include applying to a
court or tribunal.
Landlord’s consent
3     (1)
This paragraph applies if—
(a)
A occupies premises under a tenancy,
(b)
A is proposing to make an alteration to the premises so as to comply
with a duty to make reasonable adjustments, and
(c)
but for this paragraph, A would not be entitled to make the
alteration.
      (2)
This paragraph also applies if—
(a)
A is a responsible person in relation to common parts,
(b)
A is proposing to make an alteration to the common parts so as to
comply with a duty to make reasonable adjustments,
(c)
A is the tenant of property which includes the common parts, and
(d)
but for this paragraph, A would not be entitled to make the
alteration.
      (3)
The tenancy has effect as if it provided—
(a)
for A to be entitled to make the alteration with the written consent of
the landlord,
(b)
for A to have to make a written application for that consent,
(c)
for the landlord not to withhold the consent unreasonably, and
(d)
for the landlord to be able to give the consent subject to reasonable
conditions.
      (4)
If a question arises as to whether A has made the alteration (and,
accordingly, complied with a duty to make reasonable adjustments), any
constraint attributable to the tenancy must be ignored unless A has applied
to the landlord in writing for consent to the alteration.
      (5)
For the purposes of sub-paragraph (1) or (2), A must be treated as not
entitled to make the alteration if the tenancy—
(a)
imposes conditions which are to apply if A makes an alteration, or
(b)
entitles the landlord to attach conditions to a consent to the
alteration.
Proceedings before county court or sheriff
4     (1)
This paragraph applies if, in a case within Part 3, 4, 6 or 7 of this Act—
(a)
A has applied in writing to the landlord for consent to the alteration,
and
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EXPLANATORY NOTES

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Schedule 21 — Reasonable adjustments: supplementary

(b)
the landlord has refused to give consent or has given consent subject
to a condition.
      (2)
A (or a disabled person with an interest in the alteration being made) may
refer the matter to a county court or, in Scotland, the sheriff.
      (3)
The county court or sheriff must determine whether the refusal or condition
is unreasonable.
      (4)
If the county court or sheriff finds that the refusal or condition is
unreasonable, the county court or sheriff—
(a)
may make such declaration as it thinks appropriate;
(b)
may make an order authorising A to make the alteration specified in
the order (and requiring A to comply with such conditions as are so
specified).
Joining landlord as party to proceedings
5     (1)
This paragraph applies to proceedings relating to a contravention of this Act
by virtue of section 19.
      (2)
A party to the proceedings may request the employment tribunal, county
court or sheriff (“the judicial authority”) to direct that the landlord is joined
or sisted as a party to the proceedings.
      (3)
The judicial authority—
(a)
must grant the request if it is made before the hearing of the
complaint or claim begins;
(b)
may refuse the request if it is made after the hearing begins;
(c)
must refuse the request if it is made after the complaint or claim has
been determined.
      (4)
If the landlord is joined or sisted as a party to the proceedings, the judicial
authority may determine whether—
(a)
the landlord has refused to consent to the alteration;
(b)
the landlord has consented subject to a condition;
(c)
the refusal or condition was unreasonable.
      (5)
If the judicial authority finds that the refusal or condition was unreasonable,
it—
(a)
may make such declaration as it thinks appropriate;
(b)
may make an order authorising A to make the alteration specified in
the order (and requiring A to comply with such conditions as are so
specified);
(c)
may order the landlord to pay compensation to the complainant or
claimant.
      (6)
An employment tribunal may act in reliance on sub-paragraph (5)(c) instead
of, or in addition to, acting in reliance on section 118(2); but if it orders the
landlord to pay compensation it must not do so in reliance on section 118(2).
      (7)
If a county court or the sheriff orders the landlord to pay compensation, it
may not order A to do so.
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Schedule 21 — Reasonable adjustments: supplementary

Schedule 22: statutory provisions
Statutory authority: paragraph 1
Effect
931. Paragraph 1 of this Schedule provides exceptions from several Parts of the Bill, in
relation to the protected characteristics of age, disability, religion or belief, sex and sexual
orientation, for things done in accordance with what is, or may in future be, required because
of some other law.
Background
932. Paragraph 1 replaces the separate exceptions for statutory authority in current
legislation. However, the exception in section 41(1) of the Race Relations Act 1976 as
amended is being removed but not being replaced.
933. Examples
• A shopkeeper can lawfully refuse to sell alcohol to someone under the age of 18.
• An employer can lawfully dismiss a disabled employee if health and safety
regulations leave him with no other choice.
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Schedule 22 — Statutory provisions

Regulations
6     (1)
Regulations may make provision as to circumstances in which a landlord is
taken for the purposes of this Schedule to have—
(a)
withheld consent;
(b)
withheld consent reasonably;
(c)
withheld consent unreasonably.
      (2)
Regulations may make provision as to circumstances in which a condition
subject to which a landlord gives consent is taken—
(a)
to be reasonable;
(b)
to be unreasonable.
      (3)
Regulations may make provision supplementing or modifying the
preceding paragraphs of this Schedule, or provision made under this
paragraph, in relation to a case where A’s tenancy is a sub-tenancy.
      (4)
Provision made by virtue of this paragraph may amend the preceding
paragraphs of this Schedule.
Interpretation
7
An expression used in this Schedule and in Schedule 2, 4, 8, 13 or 15 has the
same meaning in this Schedule as in that Schedule.
Schedule 22
Section 184

Statutory provisions
Statutory authority
1     (1)
A person (P) does not contravene a provision specified in the first column of
the table, so far as relating to the protected characteristic specified in the
second column in respect of that provision, if P does anything P must do
pursuant to a requirement specified in the third column.

Specified provision
Protected
Requirement

characteristic

Parts 3 to 7
Age
A requirement of an enactment

Parts 3 to 7 and 12
Disability
A requirement of an enactment

A relevant requirement or

condition imposed by virtue of

an enactment

Parts 3, 4, 6 and 7
Religion or belief
A requirement of an enactment

A relevant requirement or

condition imposed by virtue of

an enactment

Section 27(6) and
Sex
A requirement of an enactment

Parts 6 and 7

Parts 3, 4, 6 and 7
Sexual orientation
A requirement of an enactment

A relevant requirement or

condition imposed by virtue of

an enactment

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Schedule 22 — Statutory provisions

An employer can lawfully refuse to employ someone to drive a large goods vehicle who is not
old enough to hold a LGV licence.
Protection of women: paragraph 2
Effect
933. This paragraph allows differential treatment based on sex or pregnancy and maternity
at work which is required to comply with laws protecting women who are pregnant, who have
recently given birth or against risks specific to women.
Background
934. The paragraph replaces separate exceptions for the protection of women in the Sex
Discrimination Act 1975 and in the Employment Act 1989.
Examples
• A care home cannot lawfully dismiss, but can lawfully suspend, a night-shift worker
because she is pregnant and her GP has certified that she must not work nights.
• It may be lawful for a road haulier to refuse to allow a woman lorry driver to transport
chemicals that could harm women of child-bearing age.
Educational appointments etc: religious belief: paragraphs 3 and 4
Effect
935. Paragraph 3 provides an exception from the provisions on sex or religious
discrimination for certain posts in schools or institutions of further or higher education where
their governing instrument requires the head teacher or principal to be of a particular religious
order, or that a particular academic position must be held by a woman, or where the legislation
or instrument which establishes a professorship requires the holder to be an ordained priest. In
the case of academic positions reserved to women, the exception only applies where the
governing instrument was made before 16 January 1990.
936. There is an order-making power conferred on a Minister of the Crown to withdraw the
exception either in relation to a particular institution or a class of institutions.
937. Paragraph 4 provides that it is not unlawful discrimination for schools which have a
religious character or ethos (often referred to as faith schools) to do certain things which are
permitted by the School Standards and Framework Act 1998. This includes:
• allowing teachers who have been appointed to give religious education to be
dismissed if they fail to give it competently;
• allowing a foundation or voluntary aided school to take account of religious
considerations when appointing a head teacher; and
• allowing a voluntary aided school or an independent school to take account of
religious considerations in employment matters.
Background
938. Paragraph 3 is designed to replicate the effect of provisions in section 5 of the
Employment Act 1989.
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Schedule 22 — Statutory provisions

      (2)
A reference in the table to Part 6 does not include a reference to that Part so
far as relating to vocational training.
      (3)
In this paragraph a reference to an enactment includes a reference to—
(a)
a Measure of the General Synod of the Church of England;
(b)
an enactment passed or made on or after the date on which this Act
is passed.
      (4)
In the table, a relevant requirement or condition is a requirement or
condition imposed (whether before or after the passing of this Act) by—
(a)
a Minister of the Crown;
(b)
a member of the Scottish Executive;
(c)
the National Assembly for Wales (constituted by the Government of
Wales Act 1998);
(d)
the Welsh Ministers, the First Minister for Wales or the Counsel
General to the Welsh Assembly Government.
Protection of women
2     (1)
A person (P) does not contravene a specified provision only by doing in
relation to a woman (W) anything P is required to do to comply with—
(a)
a pre-1975 Act enactment concerning the protection of women;
(b)
a relevant statutory provision (within the meaning of Part 1 of the
Health and Safety at Work etc. Act 1974) if it is done for the purpose
of the protection of W (or a description of women which includes W);
(c)
a requirement of a provision specified in Schedule 1 to the
Employment Act 1989 (provisions concerned with protection of
women at work).
      (2)
The references to the protection of women are references to protecting
women in relation to—
(a)
pregnancy or maternity, or
(b)
any other circumstances giving rise to risks specifically affecting
women.
      (3)
It does not matter whether the protection is restricted to women.
      (4)
These are the specified provisions—
(a)
Part 5;
(b)
Part 6, so far as relating to vocational training.
      (5)
A pre-1975 Act enactment is an enactment contained in—
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