|
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673. This is designed to replicates the effect of provisions in the Equality Act 2006. |
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• 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. |
| |
| |
| |
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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. |
| |
| |
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. |
| |
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• 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. |
| |
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|
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| |
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(b) | a decision taken in accordance with guidance given by the Secretary |
| |
of State in connection with a decision within either of those sub- |
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| |
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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. |
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| |
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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 |
| |
| |
(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 |
| |
| |
(c) | the differences are proportionate having regard to the data, and |
| |
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|
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| |
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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)). |
| |
| |
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. |
| |
| |
• 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 |
| |
| |
Existing insurance policies: paragraph 22 |
| |
| |
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. |
| |
| |
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. |
| |
| |
• 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. |
| |
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|
| |
| |
| |
(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; |
| |
| |
(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— |
| |
| |
(b) | disability discrimination; |
| |
(c) | gender reassignment discrimination; |
| |
(d) | pregnancy and maternity discrimination; |
| |
| |
(f) | religious or belief-related 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). |
| |
| |
“insurance business” has the meaning given in paragraph 20; |
| |
“service-provider” has the meaning given in section 27. |
| |
| |
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— |
| |
| |
|
| |
| |
| |
Part 6: Separate and single services |
| |
Separate services for the sexes: paragraph 23 |
| |
| |
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 |
| |
| |
| |
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. |
| |
| |
• 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 |
| |
| |
• 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 |
| |
| |
Single-sex services: paragraph 24 |
| |
| |
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); |
| |
| |
|
| |
| |
| |
(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 |
| |
| |
(2) | A person does not contravene section 27, so far as relating to sex |
| |
discrimination, by providing separate services differently for persons of |
| |
| |
(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 |
| |
| |
(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. |
| |
| |
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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
| |
(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. |
| |
| |
|
| |
| |
| |
• 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 |
| |
| |
| |
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. |
| |
| |
692. These exceptions would allow: |
| |
• a cervical cancer screening service to be provided to women only, as only women |
| |
| |
• 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 |
| |
| |
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. |
| |
| |
694. This paragraph replaces a similar provision in the Sex Discrimination Act 1975. |
| |
| |
• 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 |
| |
| |
|
