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(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.

E232


 


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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