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(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.

E233


 


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

E234


 


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.

234


 


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.

E235


 


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.

E236


 
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