(191-197)

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

(191-197)

Schedule 22 — Statutory provisions

939. Paragraph 4 is designed to replicate the effect of regulation 39 of the Employment
Equality (Religion or Belief) Regulations 2003.
• Schools with a religious ethos can restrict employment of certain teachers to
applicants that share the same faith – for example, a Jewish school is permitted to only
employ Jewish religious education teachers.
• Universities restrict Canon Professorships to certain religions since such posts can
only be held by ordained Ministers.
Crown, etc. employment: paragraph 5
Effect
940. Paragraph 5 allows restrictions on the employment of foreign nationals in the civil,
diplomatic, armed or security and intelligence services and by certain public bodies. It also
allows restrictions on foreign nationals holding public offices.
Background
941. The paragraph replaces similar provisions in the Race Relations Act 1976.
Examples
• Posts in the security and intelligence services are automatically reserved for UK
nationals.
• People who are neither British, Commonwealth or Irish citizens nor British protected
persons are generally prohibited from serving in the armed forces, with the notable
exception of Gurkhas.
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Schedule 22 — Statutory provisions

(a)
an Act passed before the Sex Discrimination Act 1975;
(b)
an instrument approved or made by or under such an Act (including
one approved or made after the passing of the 1975 Act).
      (6)
If an Act repeals and re-enacts (with or without modification) a pre-1975
enactment then the provision re-enacted must be treated as being in a pre-
1975 enactment.
      (7)
For the purposes of sub-paragraph (1)(c), a reference to a provision in
Schedule 1 to the Employment Act 1989 includes a reference to a provision
for the time being having effect in place of it.
      (8)
This paragraph applies only to the following protected characteristics—
(a)
pregnancy and maternity;
(b)
sex.
Educational appointments, etc: religious belief
3     (1)
A person does not contravene Part 5 only by doing a relevant act in
connection with the employment of another in a relevant position.
      (2)
A relevant position is—
(a)
the head teacher or principal of an educational establishment;
(b)
the head, a fellow or other member of the academic staff of a college,
or institution in the nature of a college, in a university;
(c)
a professorship of a university which is a canon professorship or one
to which a canonry is annexed.
      (3)
A relevant act is anything it is necessary to do to comply with—
(a)
a requirement of an instrument relating to the establishment that the
head teacher or principal must be a member of a particular religious
order;
(b)
a requirement of an instrument relating to the college or institution
that the holder of the position must be a woman;
(c)
an Act or instrument in accordance with which the professorship is
a canon professorship or one to which a canonry is annexed.
      (4)
Sub-paragraph (3)(b) does not apply to an instrument taking effect on or
after 16 January 1990 (the day on which section 5(3) of the Employment Act
1989 came into force).
      (5)
A Minister of the Crown may by order provide that anything in sub-
paragraphs (1) to (3) does not have effect in relation to—
(a)
a specified educational establishment or university;
(b)
a specified description of educational establishments.
      (6)
An educational establishment is—
(a)
a school within the meaning of the Education Act 1996 or the
Education (Scotland) Act 1980;
(b)
a college, or institution in the nature of a college, in a university;
(c)
an institution designated by order made, or having effect as made,
under section 129 of the Education Reform Act 1988;
(d)
an institution designated by order under section 28 of the Further
and Higher Education Act 1992 or section 44 of the Further and
Higher Education (Scotland) Act 1992.
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Schedule 22 — Statutory provisions

Schedule 23: general exceptions
Acts authorised by statute or the executive: paragraph 1
Effect
942. This paragraph allows direct nationality discrimination and indirect race
discrimination on the basis of residency requirements where the discrimination is required by
law, Ministerial arrangements or Ministerial conditions.
Background
943. The paragraph replaces a similar exception in the Race Relations Act 1976.
Examples
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Schedule 23 — General exceptions

      (7)
This paragraph does not affect paragraph 2 of Schedule 9.
4
A person does not contravene this Act only by doing anything which is
permitted for the purposes of—
(a)
section 58(6) or (7) of the School Standards and Framework Act 1998
(dismissal of teachers because of failure to give religious education
efficiently);
(b)
section 60(4) and (5) of that Act (religious considerations relating to
certain appointments);
(c)
section 124A of that Act (preference for certain teachers at
independent schools of a religious character).
Crown employment, etc.
5     (1)
A person does not contravene this Act—
(a)
by making or continuing in force rules mentioned in sub-paragraph
(2);
(b)
by publishing, displaying or implementing such rules;
(c)
by publishing the gist of such rules.
      (2)
The rules are rules restricting to persons of particular birth, nationality,
descent or residence—
(a)
employment in the service of the Crown;
(b)
employment by a prescribed public body;
(c)
holding a public office (within the meaning of section 47).
      (3)
The power to make regulations for the purpose of sub-paragraph (2)(b) is
exercisable by the Minister for the Civil Service.
      (4)
In this paragraph “public body” means a body (whether corporate or
unincorporated) exercising public functions (within the meaning given by
section 29(4)).
Schedule 23
Section 189

General exceptions
Acts authorised by statute or the executive
1     (1)
This paragraph applies to anything done—
(a)
in pursuance of an enactment;
(b)
in pursuance of an instrument made by a member of the executive
under an enactment;
(c)
to comply with a requirement imposed (whether before or after the
passing of this Act) by a member of the executive by virtue of an
enactment;
(d)
in pursuance of arrangements made (whether before or after the
passing of this Act) by or with the approval of, or for the time being
approved by, a Minister of the Crown;
(e)
to comply with a condition imposed (whether before or after the
passing of this Act) by a Minister of the Crown.
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Schedule 23 — General exceptions

• The points-based system which replaced the former work permit arrangements can
discriminate on the basis of nationality in determining whether migrants from outside
the European Economic Area and Switzerland should be given permission to work in
the United Kingdom.
• The NHS can charge some people who are not ordinarily resident in the United
Kingdom for hospital treatment they receive here.
• Overseas students at universities in England and Wales can be required to pay higher
tuition fees than local students (there are no tuition fees in Scotland).
Organisations: paragraph 2
Effect
944. Paragraph 2 provides an exception for religious or belief organisations with regard to
the provisions in the Bill relating to services and public functions, premises and associations.
945. The types of organisation that can use this exception are those that exist to: practice,
advance or teach a religion or belief; allow people of a religion or belief to participate in any
activity or receive any benefit related to that religion or belief; promote good relations
between people of different religions or beliefs. Organisations whose main purpose is
commercial cannot use this exception.
946. The exception allows an organisation (or a person acting on its behalf) to impose
restrictions on membership of the organisation; participation in its activities; the use of any
goods, facilities or services that it provides; and the use of its premises. However, any
restriction can only be imposed by reference to a person’s religion or belief or their sexual
orientation.
947. In relation to religion or belief, the exception can only apply where a restriction is
necessary to comply with the purpose of the organisation or to avoid causing offence to
members of the religion or belief that the organisation represents.
948. In relation to sexual orientation, the exception can only apply where it is necessary to
comply with the doctrine of the organisation or in order to avoid conflict with the strongly held
convictions of members of the religion or belief that the organisation represents. However, if
an organisation contracts with a public body to carry out an activity on that body’s behalf then
it cannot discriminate on grounds of sexual orientation in relation to that activity.
949. The exception also enables ministers of religion to restrict participation in the
activities that they carry out in the performance of their functions as a minister and access to
any goods, facilities or services they provide in the course of performing those functions.
Background
950. This paragraph replicates the effect of similar provisions in Part 2 of the Equality Act
2006 and the Equality Act (Sexual Orientation) Regulations 2007.
Examples
• A Catholic seminary can restrict places for students to those of the Catholic faith. This
would not be unlawful religion or belief discrimination.
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Schedule 23 — General exceptions

      (2)
A person does not contravene Part 3, 4, 5 or 6 by doing anything to which
this paragraph applies which discriminates against another because of the
other’s nationality.
      (3)
A person (A) does not contravene Part 3, 4, 5 or 6 if, by doing anything to
which this paragraph applies, A discriminates against another (B) by
applying to B a provision, criterion or practice which relates to—
(a)
B’s place of ordinary residence;
(b)
the length of time B has been present or resident in or outside the
United Kingdom or an area within it.
Organisations relating to religion or belief
2     (1)
This paragraph applies to an organisation the purpose of which is—
(a)
to practise a religion or belief,
(b)
to advance a religion or belief,
(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
belief, or
(e)
to foster or maintain good relations between persons of different
religions or beliefs.
      (2)
This paragraph does not apply to an organisation whose sole or main
purpose is commercial.
      (3)
The organisation does not contravene Part 3, 4 or 7, so far as relating to
religion or belief or sexual orientation, only by restricting—
(a)
membership of the organisation;
(b)
participation in activities undertaken by the organisation or on its
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;
(d)
the use or disposal of premises owned or controlled by the
organisation.
      (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.
      (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
organisation;
(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
only if it is imposed—
(a)
because of the purpose of the organisation, or
(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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Schedule 23 — General exceptions

• 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
its followers. This would not be unlawful sexual orientation discrimination.
• 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.
Communal accommodation: paragraph 3
Effect
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
objectively justified.
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
reasons.
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
compensate the person concerned.
Background
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
fields.
Examples
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
one communal bathroom.
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
Effect
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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