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939. Paragraph 4 is designed to replicate the effect of regulation 39 of the Employment |
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Equality (Religion or Belief) Regulations 2003. |
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• Schools with a religious ethos can restrict employment of certain teachers to |
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applicants that share the same faith – for example, a Jewish school is permitted to only |
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employ Jewish religious education teachers. |
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• Universities restrict Canon Professorships to certain religions since such posts can |
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only be held by ordained Ministers. |
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Crown, etc. employment: paragraph 5 |
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940. Paragraph 5 allows restrictions on the employment of foreign nationals in the civil, |
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diplomatic, armed or security and intelligence services and by certain public bodies. It also |
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allows restrictions on foreign nationals holding public offices. |
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941. The paragraph replaces similar provisions in the Race Relations Act 1976. |
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• Posts in the security and intelligence services are automatically reserved for UK |
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• People who are neither British, Commonwealth or Irish citizens nor British protected |
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persons are generally prohibited from serving in the armed forces, with the notable |
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(a) | an Act passed before the Sex Discrimination Act 1975; |
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(b) | an instrument approved or made by or under such an Act (including |
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one approved or made after the passing of the 1975 Act). |
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(6) | If an Act repeals and re-enacts (with or without modification) a pre-1975 |
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enactment then the provision re-enacted must be treated as being in a pre- |
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(7) | For the purposes of sub-paragraph (1)(c), a reference to a provision in |
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Schedule 1 to the Employment Act 1989 includes a reference to a provision |
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for the time being having effect in place of it. |
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(8) | This paragraph applies only to the following protected characteristics— |
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(a) | pregnancy and maternity; |
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Educational appointments, etc: religious belief |
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3 (1) | A person does not contravene Part 5 only by doing a relevant act in |
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connection with the employment of another in a relevant position. |
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(2) | A relevant position is— |
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(a) | the head teacher or principal of an educational establishment; |
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(b) | the head, a fellow or other member of the academic staff of a college, |
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or institution in the nature of a college, in a university; |
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(c) | a professorship of a university which is a canon professorship or one |
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to which a canonry is annexed. |
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(3) | A relevant act is anything it is necessary to do to comply with— |
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(a) | a requirement of an instrument relating to the establishment that the |
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head teacher or principal must be a member of a particular religious |
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(b) | a requirement of an instrument relating to the college or institution |
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that the holder of the position must be a woman; |
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(c) | an Act or instrument in accordance with which the professorship is |
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a canon professorship or one to which a canonry is annexed. |
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(4) | Sub-paragraph (3)(b) does not apply to an instrument taking effect on or |
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after 16 January 1990 (the day on which section 5(3) of the Employment Act |
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(5) | A Minister of the Crown may by order provide that anything in sub- |
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paragraphs (1) to (3) does not have effect in relation to— |
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(a) | a specified educational establishment or university; |
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(b) | a specified description of educational establishments. |
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(6) | An educational establishment is— |
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(a) | a school within the meaning of the Education Act 1996 or the |
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Education (Scotland) Act 1980; |
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(b) | a college, or institution in the nature of a college, in a university; |
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(c) | an institution designated by order made, or having effect as made, |
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under section 129 of the Education Reform Act 1988; |
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(d) | an institution designated by order under section 28 of the Further |
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and Higher Education Act 1992 or section 44 of the Further and |
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Higher Education (Scotland) Act 1992. |
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(7) | This paragraph does not affect paragraph 2 of Schedule 9. |
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4 | A person does not contravene this Act only by doing anything which is |
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permitted for the purposes of— |
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(a) | section 58(6) or (7) of the School Standards and Framework Act 1998 |
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(dismissal of teachers because of failure to give religious education |
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(b) | section 60(4) and (5) of that Act (religious considerations relating to |
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(c) | section 124A of that Act (preference for certain teachers at |
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independent schools of a religious character). |
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5 (1) | A person does not contravene this Act— |
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(a) | by making or continuing in force rules mentioned in sub-paragraph |
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(b) | by publishing, displaying or implementing such rules; |
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(c) | by publishing the gist of such rules. |
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(2) | The rules are rules restricting to persons of particular birth, nationality, |
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(a) | employment in the service of the Crown; |
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(b) | employment by a prescribed public body; |
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(c) | holding a public office (within the meaning of section 47). |
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(3) | The power to make regulations for the purpose of sub-paragraph (2)(b) is |
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exercisable by the Minister for the Civil Service. |
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(4) | In this paragraph “public body” means a body (whether corporate or |
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unincorporated) exercising public functions (within the meaning given by |
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Acts authorised by statute or the executive |
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1 (1) | This paragraph applies to anything done— |
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(a) | in pursuance of an enactment; |
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(b) | in pursuance of an instrument made by a member of the executive |
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(c) | to comply with a requirement imposed (whether before or after the |
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passing of this Act) by a member of the executive by virtue of an |
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(d) | in pursuance of arrangements made (whether before or after the |
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passing of this Act) by or with the approval of, or for the time being |
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approved by, a Minister of the Crown; |
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(e) | to comply with a condition imposed (whether before or after the |
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passing of this Act) by a Minister of the Crown. |
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• The points-based system which replaced the former work permit arrangements can |
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discriminate on the basis of nationality in determining whether migrants from outside |
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the European Economic Area and Switzerland should be given permission to work in |
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• The NHS can charge some people who are not ordinarily resident in the United |
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Kingdom for hospital treatment they receive here. |
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• Overseas students at universities in England and Wales can be required to pay higher |
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tuition fees than local students (there are no tuition fees in Scotland). |
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Organisations: paragraph 2 |
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944. Paragraph 2 provides an exception for religious or belief organisations with regard to |
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the provisions in the Bill relating to services and public functions, premises and associations. |
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945. The types of organisation that can use this exception are those that exist to: practice, |
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advance or teach a religion or belief; allow people of a religion or belief to participate in any |
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activity or receive any benefit related to that religion or belief; promote good relations |
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between people of different religions or beliefs. Organisations whose main purpose is |
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commercial cannot use this exception. |
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946. The exception allows an organisation (or a person acting on its behalf) to impose |
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restrictions on membership of the organisation; participation in its activities; the use of any |
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goods, facilities or services that it provides; and the use of its premises. However, any |
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restriction can only be imposed by reference to a person’s religion or belief or their sexual |
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947. In relation to religion or belief, the exception can only apply where a restriction is |
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necessary to comply with the purpose of the organisation or to avoid causing offence to |
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members of the religion or belief that the organisation represents. |
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948. In relation to sexual orientation, the exception can only apply where it is necessary to |
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comply with the doctrine of the organisation or in order to avoid conflict with the strongly held |
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convictions of members of the religion or belief that the organisation represents. However, if |
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an organisation contracts with a public body to carry out an activity on that body’s behalf then |
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it cannot discriminate on grounds of sexual orientation in relation to that activity. |
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949. The exception also enables ministers of religion to restrict participation in the |
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activities that they carry out in the performance of their functions as a minister and access to |
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any goods, facilities or services they provide in the course of performing those functions. |
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950. This paragraph replicates the effect of similar provisions in Part 2 of the Equality Act |
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2006 and the Equality Act (Sexual Orientation) Regulations 2007. |
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• A Catholic seminary can restrict places for students to those of the Catholic faith. This |
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would not be unlawful religion or belief discrimination. |
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(2) | A person does not contravene Part 3, 4, 5 or 6 by doing anything to which |
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this paragraph applies which discriminates against another because of the |
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(3) | A person (A) does not contravene Part 3, 4, 5 or 6 if, by doing anything to |
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which this paragraph applies, A discriminates against another (B) by |
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applying to B a provision, criterion or practice which relates to— |
| |
(a) | B’s place of ordinary residence; |
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(b) | the length of time B has been present or resident in or outside the |
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United Kingdom or an area within it. |
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Organisations relating to religion or belief |
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2 (1) | This paragraph applies to an organisation the purpose of which is— |
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(a) | to practise a religion or belief, |
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(b) | to advance a religion or belief, |
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(c) | to teach the practice or principles of a religion or belief, |
| |
(d) | to enable persons of a religion or belief to receive any benefit, or to |
| |
engage in any activity, within the framework of that religion or |
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(e) | to foster or maintain good relations between persons of different |
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(2) | This paragraph does not apply to an organisation whose sole or main |
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(3) | The organisation does not contravene Part 3, 4 or 7, so far as relating to |
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religion or belief or sexual orientation, only by restricting— |
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(a) | membership of the organisation; |
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(b) | participation in activities undertaken by the organisation or on its |
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behalf or under its auspices; |
| |
(c) | the provision of goods, facilities or services in the course of activities |
| |
undertaken by the organisation or on its behalf or under its auspices; |
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(d) | the use or disposal of premises owned or controlled by the |
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(4) | A person does not contravene Part 3, 4 or 7, so far as relating to religion or |
| |
belief or sexual orientation, only by doing anything mentioned in sub- |
| |
paragraph (3) on behalf of or under the auspices of the organisation. |
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(5) | A minister does not contravene Part 3, 4 or 7, so far as relating to religion or |
| |
belief or sexual orientation, only by restricting— |
| |
(a) | participation in activities carried on in the performance of the |
| |
minister’s functions in connection with or in respect of the |
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(b) | the provision of goods, facilities or services in the course of activities |
| |
carried on in the performance of the minister’s functions in |
| |
connection with or in respect of the organisation. |
| |
(6) | Sub-paragraphs (3) to (5) permit a restriction relating to religion or belief |
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(a) | because of the purpose of the organisation, or |
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(b) | to avoid causing offence, on grounds of the religion or belief to which |
| |
the organisation relates, to persons of that religion or belief. |
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• A Church refuses to let out its hall for a Gay Pride celebration as it considers that it |
| |
would conflict with the strongly held religious convictions of a significant number of |
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its followers. This would not be unlawful sexual orientation discrimination. |
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• A religious organisation which has a contract with a local authority to provide meals |
| |
to elderly and other vulnerable people within the community on behalf of the local |
| |
authority cannot discriminate on grounds of sexual orientation. |
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Communal accommodation: paragraph 3 |
| |
| |
951. This paragraph provides an exception to the general prohibition of sex and gender |
| |
reassignment discrimination. It allows communal accommodation to be restricted to one sex |
| |
only, as long as the accommodation is managed as fairly as possible for both men and women. |
| |
It sets out factors which must be considered when restricting communal accommodation to |
| |
one sex only, and provides that discriminatory treatment of transsexual people must be |
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| |
952. Communal accommodation is defined as residential accommodation which includes |
| |
shared sleeping accommodation which should only be used by members of one sex for privacy |
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953. Where such accommodation is refused in the field of work, or a benefit linked to such |
| |
accommodation is refused, alternative arrangements must be made where reasonable so as to |
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compensate the person concerned. |
| |
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954. This paragraph replaces similar provisions in the Sex Discrimination Act 1975. The |
| |
scope of the exception has been extended from employment, education and services to all |
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² A hostel only accepts male guests. It is not unlawful for it to refuse to accept |
| |
female guests because the majority of the bedrooms are shared and there is only |
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² At a worksite the only available sleeping accommodation is communal |
| |
accommodation occupied by men. A woman employee who wishes to attend a |
| |
training course at the worksite is refused permission because of the men-only |
| |
accommodation. Her employer must make alternative arrangements to |
| |
compensate her where reasonable, for example, by arranging alternative |
| |
accommodation or an alternative course. |
| |
Training provided to non-EEA residents, etc: paragraph 4 |
| |
| |
955. Paragraph 4 allows less favourable treatment because of a person’s nationality in |
| |
relation to training and associated benefits that are intended for people who do not live in an |
| |
EEA state, as long as the training provider believes that the person will not subsequently use |
| |
the skills obtained in Great Britain. This means that an EEA resident cannot claim to have |
| |
been discriminated against in relation to this type of activity. |
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