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(37-43)


 


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

 
 

Background

673. This is designed to replicates the effect of provisions in the Equality Act 2006.

Example

• The immigration services may differentiate between certain religious groups in order

to allow a person to enter the country to provide religious services, for example,

ministers of religion, missionaries and members of religious orders.

• A decision to prevent a person who holds extreme religious views from entering or

remaining in the country if their presence is not conducive to the public good, for

example, preachers who use the pulpit to incite violence would not constitute unlawful

discrimination on the grounds of religion or belief.

Part 5: Insurance

Disability: paragraph 20

Effect

674. Paragraph 20 provides an exception from the prohibition against discriminating

against disabled people in the provision of services connected with insurance business (as

defined) where the decision in question is based on relevant and reliable information. It

enables insurance providers to offer differential premiums and benefits to disabled people in

certain circumstances where these conditions are satisfied.

Background

675. These provisions are designed to replicate the effect of provisions in the Disability

Discrimination Act 1995. This exception is being carried forward into the Bill because it is

recognised that insurers may need to distinguish between people on the basis of the risks

against which they are insuring. The consensus is that it works well.

Example

• A disabled person with cancer applies for a life insurance policy. The insurance

company refuses to provide life insurance cover based on a medical report from the

person’s doctor which provides a prognosis on the person’s condition.

• An insurer charges higher premiums for travel insurance for a person with a particular

disability because actuarial evidence suggests that people with this disability are at

increased risk of having a heart attack.

Sex, gender reassignment, pregnancy and maternity: paragraph 21

676. Paragraph 21 provides exceptions to allow insurers to calculate different premiums

and benefits for men and women, relating to pregnancy and maternity or gender reassignment

on the basis of actuarial data.

677. Sub-paragraphs (1) and (2) provide an exception where an annuity, life assurance

policy, accident insurance policy or similar matter which involves the assessment of risk was

entered into before 6 April 2008. Under this exception any premiums or benefits under a

contract of insurance for related financial services that differ for men and women are lawful as

long as the different treatment is reasonable in the light of actuarial or other reliable data. This

paragraph provides continuing protection for things done under pre 6 April 2008 policies.

E156


 


Schedule 3 — Services and public functions: exceptions
Part 5 — Insurance

 
 

(b)   

a decision taken in accordance with guidance given by the Secretary

of State in connection with a decision within either of those sub-

paragraphs.

Interpretation

19         

A reference to entry clearance, leave to enter or remain or immigration rules

is to be construed in accordance with the Immigration Act 1971.

Part 5

Insurance

Disability

20    (1)  

It is not a contravention of section 27, so far as relating to disability

discrimination, to do anything in connection with insurance business if—

(a)   

the thing is done by reference to information that is both relevant to

the assessment of the risk to be insured and from a source on which

it is reasonable to rely, and

(b)   

it is reasonable to do the thing.

      (2)  

“Insurance business” means business which consists of effecting or carrying

out contracts of insurance; and that definition is to be read with—

(a)   

section 22 of the Financial Services and Markets Act 2000;

(b)   

any relevant order under that Act;

(c)   

Schedule 2 to that Act.

Sex, gender reassignment, pregnancy and maternity

21    (1)  

It is not a contravention of section 27, so far as relating to relevant

discrimination, to do anything in relation to an annuity, life insurance

policy, accident insurance policy or similar matter involving the assessment

of risk if—

(a)   

the thing is done by reference to actuarial or other data from a source

on which it is reasonable to rely, and

(b)   

it is reasonable to do the thing.

      (2)  

In the case of a contract of insurance, or a contract for related financial

services, entered into before 6 April 2008, sub-paragraph (1) applies only in

relation to differences in premiums and benefits that are applicable to a

person under the contract.

      (3)  

In the case of a contract of insurance, or a contract for related financial

services, entered into on or after 6 April 2008, sub-paragraph (1) applies only

to differences in premiums and benefits if—

(a)   

the use of sex as a factor in the assessment of risk is based on relevant

and accurate actuarial and statistical data,

(b)   

the data are compiled, published (whether in full or in summary

form) and regularly updated in accordance with guidance issued by

the Treasury,

(c)   

the differences are proportionate having regard to the data, and

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Schedule 3 — Services and public functions: exceptions
Part 5 — Insurance

 
 

678. The exception in sub-paragraph (3) covers contracts of insurance or for related

financial services entered into on or after 6 April 2008. On the basis of relevant and accurate

data which the insurance industry must compile, publish and update, in line with Treasury

guidance, this exception permits proportionate differences in premiums and benefits for men

and women For contracts entered into from 22 December 2008, it will be unlawful if costs

related to a woman’s pregnancy or her having given birth within the previous 26 weeks result

in differences in benefits and premiums.

679. Insurers must calculate premiums and benefits based on the legal sex of the person

seeking such services (sub paragraph (5)).

Background

680. This paragraph is designed to replicate the effect of section 45 Sex Discrimination Act

1975 in respect of insurance and financial services. Services relating to education or premises

are dealt with under Parts 6 and 4 of the Bill.

Examples

• An insurer can lawfully quote higher motor insurance premiums for young men if this

is based on actuarial and statistical up-to-date data that is published so that customers

can see the information that justifies proportionate differences in male and female

premiums and benefits.

Existing insurance policies: paragraph 22

Effect

681. Paragraph 22 provides an exception so that insurers will not be discriminating in

relation to any of the protected characteristics listed by continuing to apply terms of insurance

policies entered into before the date on which this paragraph comes into force. Where pre-

existing policies are renewed, or have their terms reviewed, on or after the date this paragraph

comes into force, the exception no longer applies to them.

Background

682. This paragraph allows for existing insurance policies to have continuing protection for

their pricing structure and other aspects of insurance policy which may not meet subsequently

altered discrimination law. Updated policies would have to be altered to meet with

discrimination law requirements.

Example

• An existing life insurance policy which was taken out in 1989, and has not been

subsequently renewed or reviewed, continues to be lawful and does not have to altered

to comply with current relevant discrimination law.

• A company has a death in service benefit insurance policy for its employees which has

been in place for many years and whose terms have not been reviewed. It benefits

from the exception unless and until the policy is reviewed or renewed.

E157


 


Schedule 3 — Services and public functions: exceptions
Part 6 — Separate and single services

 
 

(d)   

the differences do not result from costs related to pregnancy or to a

woman’s having given birth in the period of 26 weeks ending on the

day on which the thing is done.

      (4)  

“Relevant discrimination” is—

(a)   

gender reassignment discrimination;

(b)   

pregnancy and maternity discrimination;

(c)   

sex discrimination.

      (5)  

For the purposes of the application of sub-paragraph (3) to gender

reassignment discrimination by virtue of section 13, that section has effect as

if in subsection (1), after “others” there were inserted “of B’s sex”.

      (6)  

In the application of sub-paragraph (3) to a contract entered into before 22

December 2008, paragraph (d) is to be ignored.

Existing insurance policies

22    (1)  

It is not a contravention of section 27, so far as relating to relevant

discrimination, to do anything in connection with insurance business in

relation to an existing insurance policy.

      (2)  

“Relevant discrimination” is—

(a)   

age discrimination;

(b)   

disability discrimination;

(c)   

gender reassignment discrimination;

(d)   

pregnancy and maternity discrimination;

(e)   

race discrimination;

(f)   

religious or belief-related discrimination;

(g)   

sex discrimination;

(h)   

sexual orientation discrimination.

      (3)  

An existing insurance policy is a policy of insurance entered into before the

date on which this paragraph comes into force.

      (4)  

Sub-paragraph (1) does not apply where an existing insurance policy was

renewed, or the terms of such a policy were reviewed, on or after the date on

which this paragraph comes into force.

      (5)  

A review of an existing insurance policy which was part of, or incidental to,

a general reassessment by the service-provider of the pricing structure for a

group of policies is not a review for the purposes of sub-paragraph (4).

      (6)  

In this paragraph—

“insurance business” has the meaning given in paragraph 20;

“service-provider” has the meaning given in section 27.

Part 6

Separate and single services

Separate services for the sexes

23    (1)  

A person does not contravene section 27, so far as relating to sex

discrimination, by providing separate services for persons of each sex if—

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Schedule 3 — Services and public functions: exceptions
Part 6 — Separate and single services

 
 

Part 6: Separate and single services

Separate services for the sexes: paragraph 23

Effect

683. Paragraph 23 contains exceptions to the general prohibition of sex discrimination

which allow the provision of separate services for men and women

684. A provider can deliver separate services for men and women where providing a

combined service would not be as effective. A provider can deliver separate services for men

and women in different ways or to a different extent where providing a combined service

would not be as effective and it would not be reasonably practicable to provide the service

otherwise than as a separate service provided differently for each sex. In each case such

provision has to be justified.

685. The exceptions also cover the exercise of public functions in respect of the “back-

room” managerial, administrative and finance decisions which allow separate services to be

provided.

Background

686. This paragraph replaces similar provisions in the Sex Discrimination Act 1975 that

only cover public functions. The exceptions have been extended to cover all services, whether

privately or publicly provided.

Examples

• It would not be unlawful for a charity to set up separate hostels, one for homeless men

and one for homeless women, where the hostels provide the same level of service to

men and women because the level of need is the same but a unisex hostel would not be

as effective.

• It would not be unlawful for a health authority to set up different services for young

people with eating disorders, where the service for young women is better resourced

than that for young men because a larger proportion of women are affected by eating

disorders.

Single-sex services: paragraph 24

Effect

687. Paragraph 24 contains exceptions to the general prohibition of sex discrimination to

allow the provision of single-sex services.

688. Single sex services are permitted where:

• only people of that sex require it;

• there is joint provision for both sexes but that is not sufficient on its own;

• if the service were provided for men and women jointly, it would not be as effective

and it is not reasonably practicable to provide separate services for each sex;

• they are provided in a hospital or other place where users need special attention (or in

parts of such an establishment);

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Schedule 3 — Services and public functions: exceptions
Part 6 — Separate and single services

 
 

(a)   

a joint service for persons of both sexes would be less effective, and

(b)   

the limited provision is a proportionate means of achieving a

legitimate aim.

      (2)  

A person does not contravene section 27, so far as relating to sex

discrimination, by providing separate services differently for persons of

each sex if—

(a)   

a joint service for persons of both sexes would be less effective,

(b)   

the extent to which the service is required by one sex makes it not

reasonably practicable to provide the service otherwise than as a

separate service provided differently for each sex, and

(c)   

the limited provision is a proportionate means of achieving a

legitimate aim.

      (3)  

This paragraph applies to a person exercising a public function in relation to

the provision of a service as it applies to the person providing the service.

Single-sex services

24    (1)  

A person does not contravene section 27, so far as relating to sex

discrimination, by providing a service only to persons of one sex if—

(a)   

any of the conditions in sub-paragraphs (2) to (7) is satisfied, and

(b)   

the limited provision is a proportionate means of achieving a

legitimate aim.

      (2)  

The condition is that only persons of that sex have need of the service.

      (3)  

The condition is that—

(a)   

the service is also provided jointly for persons of both sexes, and

(b)   

the service would be insufficiently effective were it only to be

provided jointly.

      (4)  

The condition is that—

(a)   

a joint service for persons of both sexes would be less effective, and

(b)   

the extent to which the service is required by persons of each sex

makes it not reasonably practicable to provide separate services.

      (5)  

The condition is that the service is provided at a place which is, or is part

of—

(a)   

a hospital, or

(b)   

another establishment for persons requiring special care,

supervision or attention.

      (6)  

The condition is that—

(a)   

the service is provided for, or is likely to be used by, two or more

persons at the same time, and

(b)   

the circumstances are such that a person of one sex might reasonably

object to the presence of a person of the opposite sex.

      (7)  

The condition is that—

(a)   

there is likely to be physical contact between a person (A) to whom

the service is provided and another person (B), and

(b)   

B might reasonably object if A were not of the same sex as B.

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Schedule 3 — Services and public functions: exceptions
Part 6 — Separate and single services

 
 

• they may be used by more than one person and a woman might object to the presence

of a man (or vice versa); or

• they may involve physical contact between a user and someone else and that other

person may reasonably object if the user is of the opposite sex.

689. In each case, the separate provision has to be objectively justified.

690. These exceptions also cover public functions in respect of the ‘back-room’

managerial, administrative and finance decisions which allow such single-sex services to be

provided.

Background

691. This paragraph replaces some similar provisions that only covered public functions

and some that applied to services in the Sex Discrimination Act 1975. These exceptions have

been extended to cover both services and public functions.

Examples

692. These exceptions would allow:

• a cervical cancer screening service to be provided to women only, as only women

need the service;

• a “new fathers” support group to be provided by a health authority, as there is

insufficient attendance by men at the new parents’ support group;

• a domestic violence support unit to be set up by a local authority for women only but

there is no men-only unit because of insufficient demand;

• separate male and female wards to be provided in a hospital;

• separate male and female changing rooms to be provided in a department store;

• a massage service to be provided to women only by a female massage therapist with

her own business operating in her clients’ homes because she would feel

uncomfortable massaging men in that environment.

Gender reassignment: paragraph 25

Effect

693. Paragraph 25 contains an exception to the general prohibition of gender reassignment

discrimination in relation to the provision of separate- and single-sex services. Such treatment

by a provider has to be objectively justified.

Background

694. This paragraph replaces a similar provision in the Sex Discrimination Act 1975.

Example

• A clothes shop manager prevents a male to female transsexual person from using the

women’s communal changing rooms. This would be lawful as long as the manager has

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