(86-92)

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

(86-92)

Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

      (3)
If the duty to make reasonable adjustments is imposed on A by section 52,
this paragraph applies only in so far as the employment service which A
provides is vocational training within the meaning of section 53(8)(a).
Schedule 9
Section 78

Work: exceptions
Part 1
Occupational requirements
General
1     (1)
A person (A) does not contravene a provision mentioned in sub-paragraph
(2) by applying in relation to work a requirement to have a particular
protected characteristic, if A shows that, having regard to the nature or
context of the work—
(a)
it is an occupational requirement,
(b)
the application of the requirement is a proportionate means of
achieving a legitimate aim, and
(c)
the person to whom A applies the requirement does not meet it (or
A has reasonable grounds for not being satisfied that the person
meets it).
      (2)
The provisions are—
(a)
section 36(1)(a) or (c) or (2)(b) or (c);
(b)
section 38(1)(b);
(c)
section 41(1)(a) or (c) or (2)(b) or (c);
(d)
section 42(1)(a) or (c) or (2)(b) or (c);
(e)
section 46(3)(a) or (c) or (6)(b) or (c);
(f)
section 47(3)(a) or (c) or (6)(b) or (c);
(g)
section 48(1).
      (3)
The references in sub-paragraph (1) to a requirement to have a protected
characteristic are to be read—
(a)
in the case of gender reassignment, as references to a requirement
not to be a transsexual person (and section 7(3) is accordingly to be
ignored);
(b)
in the case of marriage and civil partnership, as references to a
requirement not to be married or a civil partner (and section 8(2) is
accordingly to be ignored).
      (4)
In the case of a requirement to be of a particular sex, sub-paragraph (1) has
effect as if in paragraph (c), the words from “(or” to the end were omitted.
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Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

Examples
• The need for authenticity or realism might require someone of a particular race, sex or
age for acting roles (for example, a black man to play the part of Othello) or modelling
jobs.
• Considerations of privacy or decency might require a public changing room or
lavatory attendant to be of the same sex as those using the facilities.
• An organisation for deaf people might legitimately employ a deaf person who uses
British Sign Language to work as a counsellor to other deaf people whose first or
preferred language is BSL.
• Unemployed Muslim women might not take advantage of the services of an outreach
worker to help them find employment if they were provided by a man.
Religious requirements relating to sex, marriage etc., sexual orientation: paragraph 2
Effect
743. Where employment is for purposes of an organised religion, this paragraph allows the
employer to apply a requirement to be of a particular sex, not to be a transsexual person or
make a requirement related to the employee’s marriage, civil partnership or sexual orientation,
but only if –
• appointing a person who meets the requirement in question is a proportionate way of
complying with the doctrines of the religion; or,
• because of the nature or context of the employment, employing a person who does not
meet the requirement would conflict with a significant number of the religion’s
followers’ strongly held religious convictions.
744. The requirement must be crucial to the post, and not merely one of several important
factors. It also must not be a sham or pretext. The application of the requirement must be a
proportionate way of complying with the doctrines of the religion or of avoiding such a
conflict.
745. Employment can only be classified as for purposes of an organised religion if the
employment wholly or mainly involves promoting or explaining the doctrines of the religion
or leading or assisting in the observation of religious practices or ceremonies.
746. The requirement can also be applied by a qualifications body in relation to a relevant
qualification (within the meaning of clause 50), if employment is for the purposes of an
organised religion and either of the above criteria are met and the employment is for the
purposes of organised religion as defined above.
Background
747. This specific exception applies to a very narrow range of circumstances. It replaces
and harmonises exceptions contained in current discrimination law but makes it clear that the
employment in question must be closely related to the religious purposes of the organisation.
Applying the requirement must be a proportionate way of meeting either of the criteria
described in paragraph 742 above.
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Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

Religious requirements relating to sex, marriage etc., sexual orientation
2     (1)
A person (A) does not contravene a provision mentioned in sub-paragraph
(2) by applying in relation to employment a requirement to which sub-
paragraph (4) applies if A shows that—
(a)
the employment is for the purposes of an organised religion,
(b)
the application of the requirement engages the compliance or non-
conflict principle, and
(c)
the person to whom A applies the requirement does not meet it (or
A has reasonable grounds for not being satisfied that the person
meets it).
      (2)
The provisions are—
(a)
section 36(1)(a) or (c) or (2)(b) or (c);
(b)
section 46(3)(a) or (c) or (6)(b) or (c);
(c)
section 47(3)(a) or (c) or (6)(b) or (c);
(d)
section 48(1).
      (3)
A person does not contravene section 50(1) or (2)(a) or (b) by applying in
relation to a relevant qualification (within the meaning of that section) a
requirement to which sub-paragraph (4) applies if the person shows that—
(a)
the qualification is for the purposes of employment mentioned in
sub-paragraph (1)(a), and
(b)
the application of the requirement engages the compliance or non-
conflict principle.
      (4)
This sub-paragraph applies to—
(a)
a requirement to be of a particular sex;
(b)
a requirement not to be a transsexual person;
(c)
a requirement not to be married or a civil partner;
(d)
a requirement not to be married to, or the civil partner of, a person
who has a living former spouse or civil partner;
(e)
a requirement relating to circumstances in which a marriage or civil
partnership came to an end;
(f)
a requirement related to sexual orientation.
      (5)
The application of a requirement engages the compliance principle if the
application is a proportionate means of complying with the doctrines of the
religion.
      (6)
The application of a requirement engages the non-conflict principle if,
because of the nature or context of the work, the application is a
proportionate means of avoiding conflict with the strongly held religious
convictions of a significant number of the religion’s followers.
      (7)
A reference to employment includes a reference to an appointment to a
personal or public office.
      (8)
Employment is for the purposes of an organised religion only if the
employment wholly or mainly involves—
(a)
leading or assisting in the observation of liturgical or ritualistic
practices of the religion, or
(b)
promoting or explaining the doctrine of the religion (whether to
followers of the religion or to others).
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Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

Example
• This exception would apply to a requirement that a Catholic priest be a man.
• This exception would not apply to a requirement that a church youth worker or
accountant be heterosexual.
Other requirements relating to religion and belief: paragraph 3
Effect
748. This paragraph allows an employer with an ethos based on religion or belief to
discriminate in relation to work by applying a requirement to be of a particular religion or
belief, but only if, having regard to that ethos –
• being of that religion or belief is a requirement for the work (this requirement must not
be a sham or pretext); and
• applying the requirement is proportionate so as to achieve a legitimate aim.
749. It is for an employer to show that it has an ethos based on religion or belief by
reference to such evidence as the organisation’s founding constitution.
751. Background
751. This paragraph is designed to replicate the effect of provisions in current legislation.
Example
• A religious organisation may wish to restrict applicants for the post of head of its
organisation to those people that adhere to that faith. This is because to represent the
views of that organisation accurately it is felt that the person in charge of that
organisation must have an in-depth understanding of the religion’s doctrines. This type
of discrimination could be lawful. However, other posts that do not require this kind of
in-depth understanding, such as administrative posts, should be open to all people
regardless of their religion or belief
Armed forces: paragraph 4
Effect
752. This paragraph allows women and transsexual persons to be excluded from service in
the armed forces if this is a proportionate way to ensure the combat effectiveness of the armed
forces.
753. It also exempts the armed forces from the work provisions of the Bill relating to
disability and age.
Background
754. This paragraph replicates the effects of exemptions for the armed forces in current
legislation, but narrows the scope of the existing combat effectiveness exception so that this
applies only to direct discrimination in relation to recruitment and access to training,
promotion and transfer opportunities.
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Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

      (9)
In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1)
has effect as if in paragraph (c) the words from “(or” to the end were omitted.
Other requirements relating to religion or belief
3
A person (A) with an ethos based on religion or belief does not contravene a
provision mentioned in paragraph 1(2) by applying in relation to work a
requirement to be of a particular religion or belief if A shows that, having
regard to that ethos and to the nature or context of the work—
(a)
it is an occupational requirement,
(b)
the application of the requirement is a proportionate means of
achieving a legitimate aim, and
(c)
the person to whom A applies the requirement does not meet it (or
A has reasonable grounds for not being satisfied that the person
meets it).
Armed forces
4     (1)
A person does not contravene section 36(1)(a) or (c) or (2)(b) by applying in
relation to service in the armed forces a relevant requirement if the person
shows that the application is a proportionate means of ensuring the combat
effectiveness of the armed forces.
      (2)
A relevant requirement is—
(a)
a requirement to be a man;
(b)
a requirement not to be a transsexual person.
      (3)
This Part of this Act, so far as relating to age or disability, does not apply to
service in the armed forces; and section 52, so far as relating to disability,
does not apply to work experience in the armed forces.
Vocational training
5     (1)
A person (A) does not contravene section 52(1)(b) or (c) or (2)(a) or (b) if A
shows that A’s treatment of another person relates only to work the offer of
which could be refused to that other person in reliance on paragraph 1, 2, 3
or 4.
      (2)
A person (A) does not contravene section 52 if A shows that A’s treatment
of another person relates only to training for work of a description
mentioned in sub-paragraph (1).
      (3)
A person (A) does not contravene section 52(1)(b) or (c) or (2)(a) or (b) if A
shows that—
(a)
A acted in reliance on a statement made to A by a person with the
power to offer the work in question to the effect that, by virtue of
sub-paragraph (1) or (2), A’s action would be lawful, and
(b)
it was reasonable for A to rely on the statement.
      (4)
A person commits an offence by knowingly or recklessly making a
statement such as is mentioned in sub-paragraph (3)(a) which in a material
respect is false or misleading.
      (5)
A person guilty of an offence under sub-paragraph (4) is liable on summary
conviction to a fine not exceeding level 5 on the standard scale.
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Schedule 9 — Work: exceptions
Part 1 — Occupational requirements

Examples
• Only ground close-combat roles requiring Service personnel to deliberately close with
and kill the enemy face-to-face are confined to men. Women and transsexual people
are, therefore, currently excluded from the Royal Marines General Service, the
Household Cavalry and Royal Armoured Corps, the Infantry and the Royal Air Force
Regiment only.
Vocational training: paragraph 5
Effect
755. This paragraph makes it lawful for a vocational training or other employment service
provider to restrict access to the training or service to people with a particular protected
characteristic if it relates to work for which having that characteristic is an occupational
requirement, or to training for such work.
756. The service provider can rely on the exception by showing that he or she reasonably
relied on a statement from a person who could offer the work or training in question that
having the particular characteristic was an occupational requirement. It is, however, a criminal
offence for such a person to make a statement of that kind which they know to be false or
misleading.
Background
757. This paragraph is designed to replicate the effect of provisions in current legislation.
Example
758. If a Catholic theological training course run by a training provider is exclusively
required for those training to be Catholic priests, it may be an occupational requirement for
students on the course to be Catholic, because it is an occupational requirement for priests to
be Catholic.
Interpretation: paragraph 6
Effect
759. This paragraph defines “work” for the purposes of Part 1 of the Schedule and provides
that the exceptions in this Part are available in respect of direct discrimination in recruitment,
access to promotion, transfer or training, or (except in the case of sex discrimination) dismissal
only. None of these exceptions can be used to justify indirect discrimination or harassment.
Part 2: Exceptions relating to age
Retirement: paragraph 8
Effect
760. This paragraph allows employers to dismiss on the grounds of retirement employees
at the age of 65 or over without this being regarded as age discrimination and/or unfair
dismissal. However, where an employee has a normal retirement age which is applicable to
him which exceeds the age of 65, if the employee is dismissed on the grounds of retirement
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Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age

Interpretation
6     (1)
This paragraph applies for the purposes of this Part of this Schedule.
      (2)
A reference to contravening a provision of this Act is a reference to
contravening that provision by virtue of section 13.
      (3)
A reference to work is a reference to employment, contract work, a position
as a partner or as a member of an LLP, or an appointment to a personal or
public office.
      (4)
A reference to a person includes a reference to an organisation.
      (5)
A reference to section 36(2)(b), 41(2)(b), 42(2)(b), 46(6)(b) or 47(6)(b) is to be
read as a reference to that provision with the omission of the words “or for
receiving any other benefit, facility or service”.
      (6)
A reference to section 36(2)(c), 41(2)(c), 42(2)(c), 46(6)(c), 47(6)(c), 50(2)(a) or
52(2)(c) (dismissal, etc.) does not include a reference to that provision so far
as relating to sex.
      (7)
The reference to paragraph (b) of section 38(1), so far as relating to sex, is to
be construed as if that paragraph read—
“(b)
by not allowing the worker to do the work.”
Part 2
Exceptions relating to age
Preliminary
7
For the purposes of this Part of this Schedule, a reference to an age
contravention is a reference to a contravention of this Part of this Act, so far
as relating to age.
Retirement
8     (1)
It is not an age contravention to dismiss a relevant worker at or over the age
of 65 if the reason for the dismissal is retirement.
      (2)
Each of the following is a relevant worker—
(a)
an employee within the meaning of section 230(1) of the
Employment Rights Act 1996;
(b)
a person in Crown employment;
(c)
a relevant member of the House of Commons staff;
(d)
a relevant member of the House of Lords staff.
      (3)
Retirement is a reason for dismissal only if it is a reason for dismissal by
virtue of Part 10 of the Employment Rights Act 1996.
Applicants at or approaching retirement age
9     (1)
A person does not contravene section 36(1)(a) or (c), so far as relating to age,
in a case where the other person—
(a)
has attained the age limit, or would have attained it before the end of
six months beginning with the date on which the application for the
employment had to be made, and
183