(198-204)

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

(198-204)

Schedule 23 — General exceptions

      (7)
Sub-paragraphs (3) to (5) permit a restriction relating to sexual orientation
only if it is imposed—
(a)
because it is necessary to comply with the doctrine of the
organisation, or
(b)
to avoid conflict with strongly held convictions within sub-
paragraph (9).
      (8)
In sub-paragraph (5), the reference to a minister is a reference to a minister
of religion, or other person, who—
(a)
performs functions in connection with a religion or belief to which
the organisation relates, and
(b)
holds an office or appointment in, or is accredited, approved or
recognised for the purposes of the organisation.
      (9)
The strongly held convictions are—
(a)
in the case of a religion, the strongly held religious convictions of a
significant number of the religion’s followers;
(b)
in the case of a belief, the strongly held convictions relating to the
belief of a significant number of the belief’s followers.
     (10)
This paragraph does not permit anything which is prohibited by section 27,
so far as relating to sexual orientation, if it is done—
(a)
on behalf of a public authority, and
(b)
under the terms of a contract between the organisation and the
public authority.
     (11)
In the application of this paragraph in relation to sexual orientation, sub-
paragraph (1)(e) must be ignored.
     (12)
In the application of this paragraph in relation to sexual orientation, in sub-
paragraph (3)(d), “disposal” does not include disposal of an interest in
premises by way of sale if the interest being disposed of is—
(a)
the entirety of the organisation’s interest in the premises, or
(b)
the entirety of the interest in respect of which the organisation has
power of disposal.
     (13)
In this paragraph—
(a)
“disposal” is to be construed in accordance with section 35;
(b)
“public authority” has the meaning given in section 144(1).
Communal accommodation
3     (1)
A person does not contravene this Act, so far as relating to sex
discrimination or gender reassignment discrimination, only because of
anything done in relation to—
(a)
the admission of persons to communal accommodation;
(b)
the provision of a benefit, facility or service linked to the
accommodation.
      (2)
Sub-paragraph (1)(a) does not apply unless the accommodation is managed
in a way which is as fair as possible to both men and women.
      (3)
In applying sub-paragraph (1)(a), account must be taken of—
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Schedule 23 — General exceptions

956. Employment or contract work can be covered by this exception where its sole or main
purpose is the provision of training in skills. Special provision is made in relation to defence
training to reflect current arrangements to help provide other nations with the skills to assist
the United Kingdom in addressing global conflict and supporting the United Kingdom on
multi-national operations.
Background
957. The main purpose of this provision is to enable people from developing countries to
acquire vital skills which may not be available in their country of residence. It replaces similar
provisions in the Race Relations Act 1976. The general rule on non-residence has been
extended from Great Britain to include all EEA states, except in relation to defence training
which is provided to forces from other EEA states as well as those outside the EEA.
Example
² It is not unlawful for a company specialising in sustainable irrigation that offers
a training scheme in Great Britain for people who live in Mozambique, who
then return home to put the skills learned into practice, to refuse to offer the
same training to someone who lives in Great Britain.
•
E237

Schedule 23 — General exceptions

(a)
whether and how far it is reasonable to expect that the
accommodation should be altered or extended or that further
accommodation should be provided, and
(b)
the frequency of the demand or need for use of the accommodation
by persons of one sex as compared with those of the other.
      (4)
In applying sub-paragraph (1)(a) in relation to gender reassignment,
account must also be taken of whether and how far the conduct in question
is a proportionate means of achieving a legitimate aim.
      (5)
Communal accommodation is residential accommodation which includes
dormitories or other shared sleeping accommodation which for reasons of
privacy should be used only by persons of the same sex.
      (6)
Communal accommodation may include—
(a)
shared sleeping accommodation for men and for women;
(b)
ordinary sleeping accommodation;
(c)
residential accommodation all or part of which should be used only
by persons of the same sex because of the nature of the sanitary
facilities serving the accommodation.
      (7)
A benefit, facility or service is linked to communal accommodation if—
(a)
it cannot properly and effectively be provided except for those using
the accommodation, and
(b)
a person could be refused use of the accommodation in reliance on
sub-paragraph (1)(a).
      (8)
This paragraph does not apply for the purposes of Part 5 unless such
arrangements as are reasonably practicable are made to compensate for—
(a)
in a case where sub-paragraph (1)(a) applies, the refusal of use of the
accommodation;
(b)
in a case where sub-paragraph (1)(b) applies, the refusal of provision
of the benefit, facility or service.
Training provided to non-EEA residents, etc.
4     (1)
A person (A) does not contravene this Act, so far as relating to nationality,
only by providing a non-resident (B) with training, if A thinks that B does
not intend to exercise in Great Britain skills B obtains as a result.
      (2)
A non-resident is a person who is not ordinarily resident in an EEA state.
      (3)
The reference to providing B with training is—
(a)
if A employs B in relevant employment, a reference to doing
anything in or in connection with the employment;
(b)
if A as a principal allows B to do relevant contract work, a reference
to doing anything in or in connection with allowing B to do the work;
(c)
in a case within paragraph (a) or (b) or any other case, a reference to
affording B access to facilities for education or training or ancillary
benefits.
      (4)
Employment or contract work is relevant if its sole or main purpose is the
provision of training in skills.
      (5)
In the case of training provided by the armed forces or Secretary of State for
purposes relating to defence, sub-paragraph (1) has effect as if—
237

Schedule 23 — General exceptions

Schedule 24: Harmonisation Exceptions
Effect
958. This Schedule sets out the provisions of the Bill to which the power in clause 191 does
not apply. These are largely provisions where all the equality provisions are clearly governed
by Community law or where power exists under other legislation to deal with any anomalies
that may otherwise arise. Accordingly it will not be possible to amend these provisions using
the power in clause 192 to bring them into line, where needed, with changes in European law.
E238

Schedule 24 — Harmonisation exceptions

(a)
the reference in sub-paragraph (2) to an EEA state were a reference
to Great Britain, and
(b)
in sub-paragraph (4), for “its sole or main purpose is” there were
substituted “it is for purposes including”.
      (6)
“Contract work” and “principal” each have the meaning given in section 38.
Schedule 24
Section 191

Harmonisation exceptions

Part 1 (public sector duty regarding socio-economic

inequalities)

Chapter 2 of Part 5 (occupational pensions)

Section 73 (gender pay gap)

Chapters 1 to 3 of Part 9 (enforcement) and Chapter 5 of that

Part (except section 130)

Sections 136 and 140 (unenforceable terms, declaration in

respect of void terms)

Chapter 1 of Part 11 (public sector duty)

Part 12 (disabled persons: transport)

Part 13 (disability: miscellaneous)

Section 190 (power to specify age exceptions)

Part 15 (general and miscellaneous)

Schedule 1 (disability: supplementary provision)

In Schedule 3 (services and public functions: exceptions)—

(a)
in Part 3 (health and care), paragraphs 13 and 14;

(b)
Part 4 (immigration);

(c)
Part 5 (insurance);

(d)
Part 6 (separate and single services), except paragraph

27;

(e)
Part 7 (transport);

(f)
Part 8 (supplementary)

Schedule 4 (premises: reasonable adjustments)

Schedule 5 (premises: exceptions), except paragraph 1

Schedule 6 (office-holders: excluded offices), except so far as

relating to colour or nationality or marriage and civil

partnership

Schedule 8 (work: reasonable adjustments)

In Schedule 9 (work: exceptions)—

(a)
Part 1 (general), except in so far as relating to colour or

nationality;

(b)
Part 2 (exceptions relating to age);

(c)
Part 3 (other exceptions), except paragraph 19 so far as

relating to colour or nationality

Schedule 10 (education: accessibility for disabled pupils)

Schedule 13 (education: reasonable adjustments), except

paragraphs 2, 5, 6 and 9

Schedule 17 (education: disabled pupils: enforcement)

Schedule 18 (public sector equality duty: exceptions)

Schedule 19 (list of public authorities)

Schedule 20 (rail vehicle accessibility: compliance)

Schedule 21 (reasonable adjustments: supplementary)

In Schedule 22 (exceptions: statutory provisions), paragraphs 2

and 5

Schedule 23 (general exceptions), except paragraph 2

Schedule 25 (information society services)

238

Schedule 24 — Harmonisation exceptions

Schedule 25: Information society services
Effect
959. This Schedule ensures that the provisions of the Bill do not conflict with the
requirements of Directive 2000/31/EC of the European Parliament and of the Council of 8
June 2000 (“the E-Commerce Directive“). It provides that where an information society
service provider (“the provider”) is established in Great Britain, the provisions of the Bill
apply to anything done by the provider in providing the information society service in another
EEA state. By contrast, where the provider is established in an EEA state other than the
United Kingdom, then the Bill does not apply to anything done by the provider in providing
the information society service, even within Great Britain. Various exceptions to the
provisions of the Bill are provided in respect of intermediary internet service providers who
carry out activities essential for the operation of the internet.
Background
960. These provisions are new. They are necessary to ensure the United Kingdom correctly
transposes the E-Commerce Directive.
Examples
• An on-line holiday company established in Great Britain refuses to take bookings for
shared accommodation from same-sex couples. In this instance a case of direct sexual
orientation discrimination could be brought in the British courts regardless of whether
the complainant was in the United Kingdom or another EEA member state.
E239

Schedule 25 — Information society services

Schedule 25
Section 193

Information society services
Service providers
1     (1)
This paragraph applies where a person concerned with the provision of an
information society service (an “information society service provider”) is
established in Great Britain.
      (2)
This Act applies to anything done by the person in an EEA state (other than
the United Kingdom) in providing the service as this Act would apply if the
act in question were done by the person in Great Britain.
2     (1)
This paragraph applies where an information society service provider is
established in an EEA state (other than the United Kingdom).
      (2)
This Act does not apply to anything done by the person in providing the
service.
Exceptions for mere conduits
3     (1)
An information society service provider does not contravene this Act only
by providing so much of an information society service as consists in—
(a)
the provision of access to a communication network, or
239