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Schedule 3 — Services and public functions: exceptions
Part 2 — Education

 
 

(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

a school.

      (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

2004.

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

Part 6.

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Schedule 3 — Services and public functions: exceptions
Part 2 — Education

 
 

657. Examples

• 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

Effect

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

not be unreasonable.

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

Health Authority.

659. “Blood” includes components, for instance plasma or red blood cells.

Background

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.

• Examples

• 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

maternity.

Health and Safety: paragraph 14

Effect

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

conditions.

E153


 


Schedule 3 — Services and public functions: exceptions
Part 3 — Health and care

 
 

Part 3

Health and care

Blood services

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.

Health and safety

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

conditions, and

(c)   

the reason for that refusal is that A reasonably believes that

providing the service to such persons would create a risk to their

health or safety.

      (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

or safety,

(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.

Care within the family

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

and attention.

153


 


Schedule 3 — Services and public functions: exceptions
Part 3 — Health and care

 
 

Background

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.

Example

• 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

travel.

Care within the family: paragraph 15

Effect

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

care.

664. It applies irrespective of whether or not the person is paid for providing the care

service.

Background

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.

Examples

• 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.

Part 4: Immigration

Disability: paragraph 16

Effect

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

E154


 


Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration

 
 

Part 4

Immigration

Disability

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

Kingdom.

      (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

to—

(a)   

nationality;

(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

given—

(a)   

with respect to a particular case or class of case, by a Minister of the

Crown acting personally;

(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;

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Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration

 
 

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.

Background

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.

Example

• 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

Effect

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.

Background

670. This is designed to replicate the effect of an existing provision in the Race Relations

Act 1976.

Example

• Different visa requirements for nationals of different countries, which arise for a

variety of historical and political reasons, do not constitute unlawful race

discrimination.

• 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

Effect

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.

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Schedule 3 — Services and public functions: exceptions
Part 4 — Immigration

 
 

(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

asylum.

      (6)  

The reference in sub-paragraph (5)(a) to the Immigration Acts does not

include a reference to—

(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).

Religion or belief

18    (1)  

This paragraph applies in relation to religious or belief-related

discrimination.

      (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-

paragraph.

      (3)  

A decision is within this sub-paragraph if it is a decision taken in accordance

with immigration rules—

(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-

paragraph (6).

      (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

Kingdom.

      (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

or belief,

(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);

155


 
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