Equality Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Equality Bill

Equality Bill
Schedule 8 — Work: reasonable adjustments
Part 3 — Limitations on the duty
159

Local authorities (see section 56)
18    (1)
This paragraph applies where A is a local authority.

Relevant matter
Description of disabled person

A member’s carrying-out of official
The member.

business.

5
      (2)
Regulations may, for the purposes of a case within this paragraph, make
provision—
(a)
as to circumstances in which a provision, criterion or practice is, or is
not, to be taken to put a disabled person at the disadvantage referred
to in the first requirement;
10
(b)
as to circumstances in which a physical feature is, or is not, to be
taken to put a disabled person at the disadvantage referred to in the
second requirement;
(c)
as to circumstances in which it is, or in which it is not, reasonable for
a local authority to be required to take steps of a prescribed
15
description;
(d)
as to steps which it is always, or which it is never, reasonable for a
local authority to take.
Occupational pensions (see section 58)
19
This paragraph applies where A is, in relation to an occupational pension
20
scheme, a responsible person within the meaning of section 58.

Relevant matter
Description of disabled person

Carrying out A’s functions in
A person who is or may be a member

relation to the scheme.
of the scheme.

Part 3
25
Limitations on the duty
Lack of knowledge of disability, etc.
20    (1)
A is not subject to a duty to make reasonable adjustments if A does not
know, and could not reasonably be expected to know—
(a)
in the case of an applicant or potential applicant, that an interested
30
disabled person is or may be an applicant for the work in question;
(b)
in any other case referred to in this Part of this Schedule, that an
interested disabled person has a disability and is likely to be placed
at the disadvantage referred to in the first, second or third
requirement.
35
      (2)
An applicant is, in relation to the description of A specified in the first
column of the table, a person of a description specified in the second column
(and the reference to a potential applicant is to be construed accordingly).

Equality Bill
Schedule 9 — Work: exceptions
Part 1 — Occupational requirements
160

Description of A
Applicant

An employer
An applicant for employment

A firm or proposed firm
A candidate for a position as a partner

An LLP or proposed LLP
A candidate for a position as a member

A barrister or barrister’s
An applicant for a pupillage or tenancy

5

clerk

An advocate or advocate’s
An applicant for being taken as an

clerk
advocate’s devil or for becoming a

member of a stable

A relevant person in
A person who is seeking appointment to,

10

relation to a personal or
or recommendation or approval for

public office
appointment to, the office

A qualifications body
An applicant for the conferment of a

relevant qualification

An employment service-
An applicant for the provision of an

15

provider
employment service

A trade organisation
An applicant for membership

      (3)
If the duty to make reasonable adjustments is imposed on A by section 53,
this paragraph applies only in so far as the employment service which A
provides is vocational training within the meaning given by section 54(8)(a).
20
Schedule 9
Section 80

Work: exceptions
Part 1
Occupational requirements
General
25
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,
30
(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).
35
      (2)
The provisions are—

Equality Bill
Schedule 9 — Work: exceptions
Part 1 — Occupational requirements
161

(a)
section 37(1)(a) or (c) or (2)(b) or (c);
(b)
section 39(1)(b);
(c)
section 42(1)(a) or (c) or (2)(b) or (c);
(d)
section 43(1)(a) or (c) or (2)(b) or (c);
(e)
section 47(3)(a) or (c) or (6)(b) or (c);
5
(f)
section 48(3)(a) or (c) or (6)(b) or (c);
(g)
section 49(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
10
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).
15
      (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.
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-
20
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
25
A has reasonable grounds for not being satisfied that the person
meets it).
      (2)
The provisions are—
(a)
section 37(1)(a) or (c) or (2)(b) or (c);
(b)
section 47(3)(a) or (c) or (6)(b) or (c);
30
(c)
section 48(3)(a) or (c) or (6)(b) or (c);
(d)
section 49(1).
      (3)
A person does not contravene section 51(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—
35
(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—
40
(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;
45

Equality Bill
Schedule 9 — Work: exceptions
Part 1 — Occupational requirements
162

(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
5
religion.
      (6)
The application of a requirement engages the non-conflict principle if,
because of the nature or context of the employment, the application is a
proportionate means of avoiding conflict with the strongly held religious
convictions of a significant number of the religion’s followers.
10
      (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
15
practices of the religion, or
(b)
promoting or explaining the doctrine of the religion (whether to
followers of the religion or to others).
      (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.
20
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—
25
(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
30
meets it).
Armed forces
4     (1)
A person does not contravene section 37(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
35
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
40
service in the armed forces; and section 53, so far as relating to disability,
does not apply to work experience in the armed forces.

Equality Bill
Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age
163

Employment services
5     (1)
A person (A) does not contravene section 53(1) or (2) 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 53(1) or (2) if A shows that A’s
5
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 53(1) or (2) 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-
10
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.
15
      (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.
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
20
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.
25
      (5)
A reference to section 37(2)(b), 42(2)(b), 43(2)(b), 47(6)(b) or 48(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 37(2)(c), 42(2)(c), 43(2)(c), 47(6)(c), 48(6)(c), 51(2)(a) or
53(2)(c) (dismissal, etc.) does not include a reference to that provision so far
30
as relating to sex.
      (7)
The reference to paragraph (b) of section 39(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
35
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.
40

Equality Bill
Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age
164

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
5
Employment Rights Act 1996 (c. 18);
(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
10
virtue of Part 10 of the Employment Rights Act 1996.
Applicants at or approaching retirement age
9     (1)
A person does not contravene section 37(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
15
six months beginning with the date on which the application for the
employment had to be made, and
(b)
would, if recruited for the employment, be a relevant worker within
the meaning of paragraph 8.
      (2)
The age limit is whichever is the greater of—
20
(a)
the age of 65, and
(b)
the normal retirement age in the case of the employment concerned.
      (3)
The reference to the normal retirement age is to be construed in accordance
with section 98ZH of the Employment Rights Act 1996.
Benefits based on length of service
25
10    (1)
It is not an age contravention for a person (A) to put a person (B) at a
disadvantage when compared with another (C), in relation to the provision
of a benefit, facility or service in so far as the disadvantage is because B has
a shorter period of service than C.
      (2)
If B’s period of service exceeds 5 years, A may rely on sub-paragraph (1)
30
only if A reasonably believes that doing so fulfils a business need.
      (3)
A person’s period of service is whichever of the following A chooses—
(a)
the period for which the person has been working for A at or above
a level (assessed by reference to the demands made on the person)
that A reasonably regards as appropriate for the purposes of this
35
paragraph, or
(b)
the period for which the person has been working for A at any level.
      (4)
The period for which a person has been working for A must be based on the
number of weeks during the whole or part of which the person has worked
for A.
40
      (5)
But for that purpose A may, so far as is reasonable, discount—
(a)
periods of absence;
(b)
periods that A reasonably regards as related to periods of absence.

Equality Bill
Schedule 9 — Work: exceptions
Part 2 — Exceptions relating to age
165

      (6)
For the purposes of sub-paragraph (3)(b), a person is to be treated as having
worked for A during any period in which the person worked for a person
other than A if—
(a)
that period counts as a period of employment with A as a result of
section 218 of the Employment Rights Act 1996 (c. 18), or
5
(b)
if sub-paragraph (a) does not apply, that period is treated as a period
of employment by an enactment pursuant to which the person’s
employment was transferred to A.
      (7)
For the purposes of this paragraph, the reference to a benefit, facility or
service does not include a reference to a benefit, facility or service which may
10
be provided only by virtue of a person’s ceasing to work.
The national minimum wage: young workers
11    (1)
It is not an age contravention for a person to pay a young worker (A) at a
lower rate than that at which the person pays an older worker (B) if—
(a)
the hourly rate for the national minimum wage for a person of A’s
15
age is lower than that for a person of B’s age, and
(b)
the rate at which A is paid is below the single hourly rate.
      (2)
A young worker is a person who qualifies for the national minimum wage
at a lower rate than the single hourly rate; and an older worker is a person
who qualifies for the national minimum wage at a higher rate than that at
20
which the young worker qualifies for it.
      (3)
The single hourly rate is the rate prescribed under section 1(3) of the
National Minimum Wage Act 1998 (c. 39).
The national minimum wage: apprentices
12    (1)
It is not an age contravention for a person to pay an apprentice who does not
25
qualify for the national minimum wage at a lower rate than the person pays
an apprentice who does.
      (2)
An apprentice is a person who—
(a)
is employed under a contract of apprenticeship, or
(b)
as a result of provision made by virtue of section 3(2)(a) of the
30
National Minimum Wage Act 1998 (persons not qualifying), is
treated as employed under a contract of apprenticeship.
Redundancy
13    (1)
It is not an age contravention for a person to give a qualifying employee an
enhanced redundancy payment of an amount less than that of an enhanced
35
redundancy payment which the person gives to another qualifying
employee, if each amount is calculated on the same basis.
      (2)
It is not an age contravention to give enhanced redundancy payments only
to those who are qualifying employees by virtue of sub-paragraph (3)(a) or
(b).
40
      (3)
A person is a qualifying employee if the person—
(a)
is entitled to a redundancy payment as a result of section 135 of the
Employment Rights Act 1996,