|
|
| |
|
(b) | the exercise of its functions under section 1 of that Act, section 2 of |
| |
the Standards in Scotland’s Schools etc. Act 2000 (asp 6) or section 4 |
| |
or 5 of the Education (Additional Support for Learning) (Scotland) |
| |
Act 2004 (asp 4) (general responsibility for education) in so far as it |
| |
relates to a matter specified in paragraph (a); |
| |
(c) | the exercise of its functions under subsection (1) of section 50 of the |
| |
Education (Scotland) Act 1980 (education of pupils in exceptional |
| |
circumstances) in so far as it consists of making arrangements of the |
| |
description referred to in subsection (2) of that section. |
| |
8 (1) | In its application to a local authority in England and Wales or an education |
| |
authority, section 27, so far as relating to sex discrimination, does not apply |
| |
to the exercise of the authority’s functions in relation to the establishment of |
| |
| |
(2) | But nothing in sub-paragraph (1) is to be taken as disapplying section 27 in |
| |
relation to the exercise of the authority’s functions under section 14 of the |
| |
Education Act 1996 or section 17 of the Education (Scotland) Act 1982. |
| |
9 | Section 27, so far as relating to age discrimination, does not apply in relation |
| |
to anything done in connection with— |
| |
(a) | the curriculum of a school, |
| |
(b) | admission to a school, |
| |
(c) | transport to or from a school, or |
| |
(d) | the establishment, alteration or closure of schools. |
| |
10 (1) | Section 27, so far as relating to disability discrimination, does not require a |
| |
local authority in England or Wales exercising functions under the |
| |
Education Acts or an education authority exercising relevant functions— |
| |
(a) | to remove or alter a physical feature; |
| |
(b) | to provide auxiliary aids or services. |
| |
(2) | Relevant functions are functions under— |
| |
(a) | the Education (Scotland) Act 1980; |
| |
(b) | the Education (Scotland) Act 1996; |
| |
(c) | the Standards in Scotland’s Schools etc. Act 2000; |
| |
(d) | the Education (Additional Support for Learning) (Scotland) Act |
| |
| |
11 | Section 27, so far as relating to religious or belief-related discrimination, |
| |
does not apply in relation to anything done in connection with— |
| |
(a) | the curriculum of a school; |
| |
(b) | admission to a school which has a religious ethos; |
| |
(c) | acts of worship or other religious observance organised by or on |
| |
behalf of a school (whether or not forming part of the curriculum); |
| |
(d) | the responsible body of a school which has a religious ethos; |
| |
(e) | transport to or from a school; |
| |
(f) | the establishment, alteration or closure of schools. |
| |
12 | This Part of this Schedule is to be construed in accordance with Chapter 1 of |
| |
| |
| |
|
|
| |
|
| |
• a public authority will not be open to claims of religions discrimination as a result of |
| |
its decision to establish, alter or close a faith school. |
| |
• a local authority can select a person of a particular religion or belief to be a governor |
| |
of a school with a religious ethos.. |
| |
658. Part 3: Health and care |
| |
Blood services: paragraph 13 |
| |
| |
657. Paragraph 13 provides that it is not unlawful for a person operating a blood service to |
| |
refuse to accept someone’s donation of blood provided they have reliable evidence that |
| |
accepting it would put the public or the individual donor at risk and that such a refusal would |
| |
| |
658. A blood service is a service that collects donations of human blood and blood |
| |
components to use for medical purposes, for example the NHS Blood and Transplant Special |
| |
| |
659. “Blood” includes components, for instance plasma or red blood cells. |
| |
| |
660. This provision is designed to replicate the effect of Regulation 28 of the Equality Act |
| |
(Sexual Orientation) Regulations 2007, and extend the exception to the other protected |
| |
characteristics. It also provides that a refusal to allow somebody to donate blood or blood |
| |
components because of a risk to the donor’s own health would not be unlawful. |
| |
| |
• If there is evidence that people who have been sexually active in a particular country |
| |
are more likely to be infected with HIV, the operator of the blood service can refuse to |
| |
accept donations of blood or blood components from people who have been sexually |
| |
active there, even if that disproportionately affects members of a particular nationality |
| |
and so might otherwise be unlawful indirect discrimination on the grounds of race. |
| |
If there is evidence that women who have recently given birth are likely to suffer detrimental |
| |
effects from giving blood or blood components, then a blood service can refuse to accept |
| |
donations from them. This would not be unlawful direct discrimination on the grounds of |
| |
| |
Health and Safety: paragraph 14 |
| |
| |
661. Paragraph 14 provides that it is not unlawful for a person to discriminate against a |
| |
pregnant woman by refusing to provide her with a service or only providing the service to her |
| |
on certain conditions if they reasonably believe that to do otherwise would create a risk to her |
| |
health or safety and they would take similar measures in respect of persons with other physical |
| |
| |
| |
|
|
| |
|
| |
| |
| |
13 (1) | A person operating a blood service does not contravene section 27 only by |
| |
refusing to accept a donation of an individual’s blood if— |
| |
(a) | the refusal is because of an assessment of the risk to the public, or to |
| |
the individual, based on clinical, epidemiological or other data |
| |
obtained from a source on which it is reasonable to rely, and |
| |
(b) | the refusal is reasonable. |
| |
(2) | A blood service is a service for the collection and distribution of human |
| |
blood for the purposes of medical services. |
| |
(3) | “Blood” includes blood components. |
| |
| |
14 (1) | A service-provider (A) who refuses to provide the service to a pregnant |
| |
woman does not discriminate against her in contravention of section 27 |
| |
because she is pregnant if— |
| |
(a) | A reasonably believes that providing her with the service would, |
| |
because she is pregnant, create a risk to her health or safety, |
| |
(b) | A refuses to provide the service to persons with other physical |
| |
| |
(c) | the reason for that refusal is that A reasonably believes that |
| |
providing the service to such persons would create a risk to their |
| |
| |
(2) | A service-provider (A) who provides, or offers to provide, the service to a |
| |
pregnant woman on conditions does not discriminate against her in |
| |
contravention of section 27 because she is pregnant if— |
| |
(a) | the conditions are intended to remove or reduce a risk to her health |
| |
| |
(b) | A reasonably believes that the provision of the service without the |
| |
conditions would create a risk to her health or safety, |
| |
(c) | A imposes conditions on the provision of the service to persons with |
| |
other physical conditions, and |
| |
(d) | the reason for the imposition of those conditions is that A reasonably |
| |
believes that the provision of the service to such persons without |
| |
those conditions would create a risk to their health or safety. |
| |
| |
15 | A person (A) does not contravene section 27 only by participating in |
| |
arrangements under which (whether or not for reward) A takes into A’s |
| |
home, and treats as members of A’s family, persons requiring particular care |
| |
| |
| |
|
|
| |
|
| |
662. Provisions making it unlawful for a person to discriminate against a pregnant woman |
| |
in the provision of services were introduced into the Sex Discrimination Act 1975 by the Sex |
| |
Discrimination (Amendment) Regulations 2008. Those provisions contain an equivalent |
| |
exception on health and safety grounds. |
| |
| |
• A leisure centre could refuse to allow a pregnant woman to use certain gym equipment |
| |
(for example, a rowing machine) after a certain point in her pregnancy if it reasonably |
| |
believed that allowing her to use the equipment would create a risk to her health and |
| |
safety and it would also refuse, for example, to allow a man with a serious heart |
| |
condition to use the equipment. |
| |
• An airline could refuse to allow a pregnant woman to travel beyond her 35th week of |
| |
pregnancy if it reasonably believed that allowing her to travel would create a risk to |
| |
her health and safety and it would also refuse people with other physical conditions to |
| |
| |
Care within the family: paragraph 15 |
| |
| |
663. Paragraph 15 is designed to ensure that people who provide foster care, or other |
| |
similar forms of care, in their own home are not subject to the prohibitions on discriminating |
| |
against, harassing or victimising a person in the provision of services while providing that |
| |
| |
664. It applies irrespective of whether or not the person is paid for providing the care |
| |
| |
| |
665. Similar provisions exist in current legislation for race, religion or belief and sexual |
| |
orientation. This provision extends the exception to all of the protected characteristics. |
| |
| |
• A Muslim family could choose to foster only a child of the same religion. This would |
| |
not constitute discrimination against a non-Muslim child. |
| |
• A woman who is the main carer for her mother decides to provide care for another |
| |
person too, and decides to restrict any offer of care to another woman. This would not |
| |
constitute discrimination against a man who needed similar care. |
| |
| |
| |
| |
666. Paragraph 16 provides an exception from the prohibition on discriminating against a |
| |
person when providing a service or exercising a public function because they have a disability, |
| |
in relation to certain immigration decisions, including making a decision not to allow someone |
| |
| |
|
|
| |
|
| |
| |
| |
16 (1) | This paragraph applies in relation to disability discrimination. |
| |
(2) | Section 27 does not apply to— |
| |
(a) | a decision within sub-paragraph (3); |
| |
(b) | anything done for the purposes of or in pursuance of a decision |
| |
within that sub-paragraph. |
| |
(3) | A decision is within this sub-paragraph if it is a decision (whether or not |
| |
taken in accordance with immigration rules) to do any of the following on |
| |
the ground that doing so is necessary for the public good— |
| |
(a) | to refuse entry clearance; |
| |
(b) | to refuse leave to enter or remain in the United Kingdom; |
| |
(c) | to cancel leave to enter or remain in the United Kingdom; |
| |
(d) | to vary leave to enter or remain in the United Kingdom; |
| |
(e) | to refuse an application to vary leave to enter or remain in the United |
| |
| |
(4) | Section 27 does not apply to— |
| |
(a) | a decision taken, or guidance given, by the Secretary of State in |
| |
connection with a decision within sub-paragraph (3); |
| |
(b) | a decision taken in accordance with guidance given by the Secretary |
| |
of State in connection with a decision within that sub-paragraph. |
| |
Nationality and ethnic or national origins |
| |
17 (1) | This paragraph applies in relation to race discrimination so far as relating |
| |
| |
| |
(b) | ethnic or national origins. |
| |
(2) | Section 27 does not apply to anything done by a relevant person in the |
| |
exercise of functions exercisable by virtue of a relevant enactment. |
| |
(3) | A relevant person is— |
| |
(a) | a Minister of the Crown acting personally, or |
| |
(b) | a person acting in accordance with a relevant authorisation. |
| |
(4) | A relevant authorisation is a requirement imposed or express authorisation |
| |
| |
(a) | with respect to a particular case or class of case, by a Minister of the |
| |
| |
(b) | with respect to a particular class of case, by a relevant enactment or |
| |
by an instrument made under or by virtue of a relevant enactment. |
| |
(5) | The relevant enactments are— |
| |
(a) | the Immigration Acts; |
| |
(b) | the Special Immigration Appeals Commission Act 1997; |
| |
| |
|
|
| |
|
to enter the country or a decision not to allow them to remain in the country. However, this |
| |
exception only applies where the decision is necessary for the public good. |
| |
| |
667. This is a new exception. |
| |
668. An express exception was not previously needed since the Disability Discrimination |
| |
Act 1995 did not prohibit direct discrimination in the provision of services or exercise of a |
| |
public function, and because disability related discrimination, which did apply to the provision |
| |
of services or exercise of a public function, could be justified if it was necessary not to |
| |
endanger the health or safety of any person. |
| |
| |
• A person who arrived at a British airport with TB could be refused entry if this was |
| |
considered necessary to protect the health of the general public. |
| |
Nationality and ethnic origin: paragraph 17 |
| |
| |
669. Paragraph 17 provides an exception from the prohibition on discriminating against a |
| |
person in the provision of services or the exercise of a public function on the grounds of their |
| |
ethnic or national origins or nationality, in relation to the exercise of immigration functions. |
| |
| |
670. This is designed to replicate the effect of an existing provision in the Race Relations |
| |
| |
| |
• Different visa requirements for nationals of different countries, which arise for a |
| |
variety of historical and political reasons, do not constitute unlawful race |
| |
| |
• Granting asylum to members of a minority ethnic group being targeted by the majority |
| |
ethnic group in a country would similarly not be unlawful discrimination. |
| |
Religion or belief: paragraph 18 |
| |
| |
671. Paragraph 18 provides an exception from the prohibition on discriminating against a |
| |
person in the provision of services or the exercise of a public function on the grounds of their |
| |
religion or belief in relation to decisions not to allow someone to enter the country or to |
| |
remove someone from the country, if that decision is made on the grounds that it is conducive |
| |
to the public good to exclude that person from the country or it is not desirable to permit the |
| |
person to remain in United Kingdom. |
| |
672. It also provides an exception for decisions relating to an application for entry |
| |
clearance or leave to enter to cover people entering the country to provide services in |
| |
connection with religion or belief, such as a minister or clergyman. |
| |
| |
|
|
| |
|
(c) | a provision made under section 2(2) of the European Communities |
| |
Act 1972 which relates to immigration or asylum; |
| |
(d) | a provision of Community law which relates to immigration or |
| |
| |
(6) | The reference in sub-paragraph (5)(a) to the Immigration Acts does not |
| |
| |
(a) | sections 28A to 28K of the Immigration Act 1971 (powers of arrest, |
| |
entry and search, etc.), or |
| |
(b) | section 14 of the Asylum and Immigration (Treatment of Claimants, |
| |
etc.) Act 2004 (power of arrest). |
| |
| |
18 (1) | This paragraph applies in relation to religious or belief-related |
| |
| |
(2) | Section 27 does not apply to a decision within sub-paragraph (3) or anything |
| |
done for the purposes of or in pursuance of a decision within that sub- |
| |
| |
(3) | A decision is within this sub-paragraph if it is a decision taken in accordance |
| |
| |
(a) | to refuse entry clearance or leave to enter the United Kingdom, or to |
| |
cancel leave to enter or remain in the United Kingdom, on the |
| |
grounds that the exclusion of the person from the United Kingdom |
| |
is conducive to the public good, or |
| |
(b) | to vary leave to enter or remain in the United Kingdom, or to refuse |
| |
an application to vary leave to enter or remain in the United |
| |
Kingdom, on the grounds that it is undesirable to permit the person |
| |
to remain in the United Kingdom. |
| |
(4) | Section 27 does not apply to a decision within sub-paragraph (5), or |
| |
anything done for the purposes of or in pursuance of a decision within that |
| |
sub-paragraph, if the decision is taken on grounds mentioned in sub- |
| |
| |
(5) | A decision is within this sub-paragraph if it is a decision (whether or not |
| |
taken in accordance with immigration rules) in connection with an |
| |
application for entry clearance or for leave to enter or remain in the United |
| |
| |
(6) | The grounds referred to in sub-paragraph (4) are— |
| |
(a) | the grounds that a person holds an office or post in connection with |
| |
a religion or belief or provides a service in connection with a religion |
| |
| |
(b) | the grounds that a religion or belief is not to be treated in the same |
| |
way as certain other religions or beliefs, or |
| |
(c) | the grounds that the exclusion from the United Kingdom of a person |
| |
to whom paragraph (a) applies is conducive to the public good. |
| |
(7) | Section 27 does not apply to— |
| |
(a) | a decision taken, or guidance given, by the Secretary of State in |
| |
connection with a decision within sub-paragraph (3) or (5); |
| |
| |
|