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Clause 23: Comparison by reference to circumstances

Effect

107.     This clause provides that like must be compared with like in cases of direct or indirect discrimination or, in the case of disability, the failure to make reasonable adjustments. The treatment of the claimant must be compared with that of an actual or a hypothetical person - the comparator - who does not share the same protected characteristic as the claimant but who is (or is assumed to be) in not materially different circumstances from the claimant. Those circumstances can include their respective abilities where the claimant is a disabled person.

108.     The clause also enables a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination.

Background

109.     The clause replicates similar provisions in current legislation.

Examples

  • A blind woman claims she was not short listed for a job involving computers because the employer wrongly assumed that blind people cannot use them. An appropriate comparator is a person who is not blind - it could be a non-disabled person or someone with a different disability - but who has the same ability to do the job as the claimant.

  • A Muslim employee is put at a disadvantage by his employer’s practice of not allowing requests for time off work on Fridays. The comparison that must be made is in terms of the impact of that practice on non-Muslim employees in similar circumstances to whom it is (or might be) applied.

Clause 24: References to particular strands of discrimination

Effect

110.     This clause sets out what is meant by references to the types of discrimination referred to in the Bill, so that references elsewhere in the Bill to age, marriage and civil partnership, race, religious or belief-related, sex or sexual orientation discrimination, include references to both direct and indirect discrimination because of each of those characteristics respectively.

111.     As well as direct and indirect discrimination, references to disability discrimination also include references to discrimination arising from disability and to a failure to comply with a duty to make reasonable adjustments; and references to gender reassignment discrimination also include discrimination within clause 16 (gender reassignment discrimination: cases of absence from work). Finally, references to pregnancy and maternity discrimination have the meanings derived from sections 17 and 18.

Clause 25: Harassment

Effect

112.     This clause defines what is meant by harassment for the purposes of the Bill. There are three types of harassment. The first type, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading humiliating or offensive environment for the complainant or violating the complainant’s dignity. The second type, sexual harassment is unwanted conduct of a sexual nature where this has the same purpose or effect as the first type of harassment. The third type is treating someone less favourably than another because they have either submitted or failed to submit to sexual harassment, or harassment related to sex or gender reassignment.

Background

113.     Current legislation provides freestanding protection against harassment, but this protection is not uniform for the different protected characteristics. This clause is aimed at achieving uniformity of approach across all protected characteristics and in all fields where the main type of harassment described above is prohibited. Courts and tribunals will continue to be required to balance competing rights on the facts of a particular case; this would include consideration of the value of freedom of expression (as set out in Article 10 of the European Convention on Human Rights) and of academic freedom.

Examples

  • A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.

  • An employer who displayed any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male.

  • A shopkeeper propositions one of his shop assistants, she rejects his advances and then is turned down for promotion which she believes she would have got if she had accepted her boss’s advances. The shop assistant would have a claim of harassment.

Clause 26: Victimisation

Effect

114.     This clause defines what conduct amounts to victimisation under the Bill. It provides that victimisation takes place where one person treats another badly because he or she in good faith done a “protected act”, for example taken or supported any action taken for the purpose of the Bill, including in relation to any alleged breach of its provisions. It also provides that victimisation takes place where one person treats another badly because he or she is suspected of having done this or of intending to do this.

115.     A person is not protected from victimisation where he or she maliciously makes or supports an untrue complaint.

116.     Only an individual can bring a claim for victimisation.

Background

117.     This clause replaces similar provisions in current legislation. However, under the Bill victimisation is technically no longer treated as a form of discrimination, so there is no longer a need to compare treatment of an alleged victim with that of a person who has not made or supported a complaint under the Bill.

Examples

  • A woman makes a complaint of sex discrimination against her employer. As a result, she is denied promotion. The denial of promotion would amount to victimisation.

  • A gay man sues a publican for persistently treating him less well than heterosexual customers. Because of this, the publican bars him from the pub altogether. This would be victimisation.

  • An employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s sexual harassment claim. This threat could amount to victimisation.

  • A man with a grudge against his employer knowingly gives false evidence in a colleague’s discrimination claim against the employer. He is subsequently dismissed for supporting the claim. His dismissal would not amount to victimisation because of his untrue and malicious evidence.

PART 3: SERVICES AND PUBLIC FUNCTIONS

Clause 27: Application of this Part

Effect

118.     This clause provides that this Part of the Bill, which prohibits discrimination, harassment and victimisation by people who supply services (which includes goods and facilities) or perform public functions, does not apply to discrimination or harassment of people in those circumstances because they are married or in a civil partnership or because of age if they are under 18.

119.     It also states that, if an act of discrimination, harassment or victimisation is made unlawful by other Parts of the Bill covering premises, work or education, then those provisions, rather than the provisions covering services and public functions, apply. Similarly, if the act in question results in a breach of an equality clause in a person’s terms of work or a non-discrimination rule in an occupational pension scheme, this Part will not apply.

Background

120.     This clause generally reflects the position in current legislation. However, since the prohibition on discrimination because of age in services and public functions will not be extended to the under 18s, this clause explains that the provisions in this Part do not apply to under 18s in respect of the protected characteristic of age.

Clause 28: Provision of services, etc.

Effect

121.     This clause makes it unlawful to discriminate against or harass a person because of a protected characteristic, or victimise someone when providing services (which includes goods and facilities). The person is protected both when requesting a service and during the course of being provided with a service.

122.     It also makes it unlawful to discriminate against, harass or victimise a person when exercising a public function which does not involve the provision of a service. Examples of such public functions include law enforcement and revenue raising and collection. Public functions which involve the provision of a service, for example, medical treatment on the NHS, are covered by the provisions dealing with services.

123.     It also imposes the duty to make reasonable adjustments set out in clause 20 in relation to providing services and exercising public functions. A person will be considered to have discriminated against a disabled person if he or she fails to comply with the duty to make reasonable adjustments.

124.     However, the prohibition on harassment when providing services or exercising public functions does not cover sexual orientation or religion or belief.

125.     The prohibitions in this clause apply, in relation to race or religion or belief, to any actions taken in connection with the grant of entry clearance to enter the United Kingdom, even if the act in question takes place outside the United Kingdom.

Background

126.     Current legislation provides some protection from discrimination, harassment and victimisation in the provision of services and the exercise of public functions. However, the protection is not uniform for the different protected characteristics. For example, there is no protection from discrimination in the exercise of public functions because of pregnancy and maternity or because a person is intending to undergo, is undergoing or has undergone gender reassignment. Also there is no protection for discrimination because of age, either in the provision of services or in the exercise of public functions.

127.     This clause replaces the existing provisions, and extends protection so that it is generally uniform across all the protected characteristics covered by this Part. However, as under existing law, there is no protection for harassment related to religion or belief or sexual orientation in either the provision of services or the exercise of public functions.

Examples

  • A man and two female friends plan a night out at a local night club. At the entrance the man is charged £10 entry; the two women are charged £5 each. The owner explains the night club is trying to attract more women and has decided to charge them half the entrance fee. This would be direct sex discrimination.

  • A company which organises outdoor activity breaks requires protective headwear to be worn for certain activities, such as white water rafting and rock climbing. This requirement could be indirectly discriminatory against Sikhs unless it can be justified, for example on health and safety grounds.

  • A man who suffers from long-standing and serious health problems, including partial paralysis and a severe sight impairment, is imprisoned. On his imprisonment, the man is not allocated an adapted cell, despite being assessed as requiring one within 24 hours of arriving at prison. Instead, he is allocated a standard cell. This would be discrimination resulting from a failure to make reasonable adjustments to take account of a person’s disability.

  • A black man goes into a bar to watch a football match. He is served a pint of beer and takes a seat at an empty table. Whilst watching the football match the bartender and a number of customers make racist remarks about some of the footballers on the pitch. When the man complains he is then called a number of derogatory names. This would be harassment because of race.

Clause 29: Ships and hovercraft

Effect

128.     This clause provides that the services provisions (and for disability, the public functions provisions) will only apply to ships and hovercraft in the way set out in regulations made by a Minister of the Crown. Because ships and hovercraft may be constantly moving between waters under the jurisdiction of different States or be outside the jurisdiction of any State, such regulations are needed to give certainty for people who provide or receive services in relation to ships and hovercraft about whether the services and public functions provisions apply.

Background

129.     Current legislation is specific on the territorial application of the services provisions, dealing specifically with ships, aircraft and hovercraft (for example, section 36 of the Sex Discrimination Act 1975 and section 27 of the Race Relations Act 1976). As the Bill is silent on the territorial application of the services provisions regulations made under this clause will ensure that there is clarity as to when and on which ships and hovercraft the services provisions apply.

Clause 30: Interpretation and exceptions

Effect

130.     This clause explains what is meant by the terms “provision of a service” and “public function” in the Bill. The definition of a “public function” is that which applies for the purposes of the Human Rights Act 1998. The public functions provisions apply only where what is being done does not fall within the definition of a “service”.

131.     This clause also explains that refusing to provide or not providing a service includes providing a person with a service of different quality, or in a different way (for example hostile or less courteous) or on less favourable terms than the service would normally be provided.

132.     This clause provides that where an employer arranges for another person to provide a service to a closed group of employees, then the members of that closed group are to be treated as a section of the public for the purposes of their relationship with the service-provider. This means that if the service-provider discriminates against members of that group, the prohibitions in this Part will apply. However, the employer is not to be treated as a service-provider, despite facilitating access to the service. Instead, his or her conduct in respect of his or her employees is to be governed by the provisions in Part 5 (work).

133.     Further details of how the reasonable adjustments duty applies in relation to providing services and exercising public functions are contained in Schedule 2.

134.     The exceptions which apply to this Part of the Bill are contained in Schedule 3.

Background

135.     Much of what is contained in this clause has its origins in current legislation, but this is now brought together in an interpretation clause rather than in the substantive provisions as is the case in the current legislation. The subsection concerning employers arranging for provision of services to their employees by another person is new.

Examples

  • Services include the provision of day care, the running of residential care homes and leisure centre facilities, whether provided by a private body or a local authority.

  • Public functions, not involving the provision of a service, include licensing functions; Government and local authority public consultation exercises; the provision of public highways; planning permission decisions; and core functions of the prison service and the probation service.

  • The definition of refusing to provide a service covers, for example, a bank which has a policy not to accept calls from customers through a third party. This could amount to indirect discrimination against a deaf person who uses a registered interpreter to call the bank.

  • An employer arranges for an insurer to provide a group health insurance scheme to his employees. The insurer refuses to provide cover on the same terms to one of the employees because she is transsexual. This would be treated as direct discrimination in the provision of services by the insurer against the employee in the same way as if the insurance was available to the general public. However, if it was the employer, rather than the insurer, who decided that the transsexual employee should not be able to access the group health insurance scheme, such discrimination in the employee’s access to benefits in the workplace would be covered by the provisions of Part 5 (work).

PART 4: PREMISES

Clause 31: Application of this Part

Effect

136.     This clause provides that this Part of the Bill, which prohibits discrimination, harassment and victimisation in relation to the disposal, management and occupation of premises, does not make it unlawful to discriminate against or harass people in those circumstances because they are married or in a civil partnership or because of age.

137.     It also states that, if an act of discrimination, harassment or victimisation is made unlawful by other Parts of the Bill covering work or education, then those provisions, rather than the provisions covering premises, apply. Further, where accommodation is provided either as a short-term let or where it is provided as part of a service or public function Part 3 (services and public functions) applies instead of this Part. If the act in question results in a breach of an equality clause in a person’s terms of work or a non-discrimination rule in an occupational pension scheme then these provisions will not apply.

Background

138.     This provision broadly reflects the position in the current legislation, which gives protection from discrimination in the disposal and management of premises across all the protected characteristics with the exception of age and marriage and civil partnership.

Clause 32: Disposals, etc.

Effect

139.     This clause makes it unlawful for a person who has the authority to dispose of premises (for example, by selling, letting or subletting a property) to discriminate against or victimise someone else in a number of ways including by offering the premises to them on less favourable terms; by not letting or selling the premises to them or by treating them less favourably.

140.     It also makes it unlawful for a person with authority to dispose of premises to harass someone who occupies or applies for them. The Bill does not however make it unlawful to harass someone because of sexual orientation or religion or belief when disposing of premises.

Background

141.     This clause replaces similar provisions in current legislation.

Examples

  • A landlord refuses to let a property to a prospective tenant because of her race. This is direct discrimination when disposing of premises.

  • A vendor offers her property to a prospective buyer who is disabled at a higher sale price than she would to a non-disabled person, because of the person’s disability. This is direct discrimination when disposing of premises.

Clause 33: Permission for disposal

Effect

142.     This clause makes it unlawful for a person whose permission is needed to dispose of premises (for example, to sell, let or sub-let a property) to discriminate against or victimise someone else by withholding that permission. It also makes it unlawful for such a person to harass someone who seeks that permission, or someone to whom the property would be sold or let if the permission were given. The Bill does not however make it unlawful to harass someone because of sexual orientation or religion or belief by withholding permission to dispose of premises.

143.     This clause does not apply where permission to dispose of premises is refused by a court in the context of legal proceedings.

Background

144.     This clause replaces similar provisions in current legislation.

Example

  • A disabled tenant seeks permission from his landlord to sublet a room within his flat to help him pay his rent. The landlord tells him that he cannot because he is disabled. This is direct discrimination in permission for disposing of premises.

Clause 34: Management

Effect

145.     This clause makes it unlawful for a person who manages premises to discriminate against or victimise someone who occupies the property in the way he or she allows the person to use a benefit or facility associated with the property, by evicting the person or by otherwise treating the person unfavourably. It also makes it unlawful for a person who manages a property to harass a person who occupies or applies to occupy. The Bill does not however make it unlawful to harass someone because of sexual orientation or religion or belief in the management of premises.

Background

146.     This clause replaces similar provisions in current legislation.

Examples

  • A manager of a property restricts a tenant’s use of a communal garden by setting fixed times when she can use the garden because she is undergoing gender reassignment, while allowing other tenants unrestricted access to the garden. This would be direct discrimination in the management of premises.

  • A manager of a property refuses to allow a lesbian tenant to use facilities which are available to other tenants, or deliberately neglects to inform her about facilities which are available for the use of other tenants, because she had previously made a claim of discrimination against the manager. This would be victimisation.

  • A manager of a property responds to requests for maintenance issues more slowly or less favourably for one tenant than similar requests from other tenants, because the tenant has a learning disability. This would be direct discrimination in the management of premises.

Clause 35: Leasehold and commonhold premises and common parts

Effect

147.     This clause imposes the reasonable adjustments duty on those who let premises, commonhold associations, and those who are responsible for the common parts of let or commonhold premises in England and Wales or tenements in Scotland. This clause also defines who is responsible for common parts, and includes a power to prescribe premises to which the requirements do not apply.

Background

148.     Part of this clause replaces similar provisions in the Disability Discrimination Act 1995 relating to let premises and premises to let. The provisions relating to common parts are new.

Example

  • An agency used by a landlord to let and manage leasehold premises, is a controller of premises under this provision and therefore is under the duty to make reasonable adjustments for disabled people, such as making information about the property available in accessible formats.

Clause 36: Interpretation and exceptions

Effect

149.     This clause explains what is meant by terms used in this Part. In particular it sets out the kinds of property transactions meant by “disposing of premises” in the case of premises which are subject to a tenancy, and defines what is meant by “tenancy”. It also makes it clear that the provisions apply to tenancies made before as well as after the Bill.

150.     The details of how the reasonable adjustments duty applies in relation to “let premises”, “premises to let”, “commonhold land” and “common parts” of let or commonhold premises are contained in Schedule 4.

151.     The exceptions which apply to this part of the Bill are contained in Schedule 5.

Background

152.     This clause replaces similar provisions in current legislation.

PART 5: WORK

Chapter 1: Employment, etc.

Clause 37: Employees and applicants

Effect

153.     This clause makes it unlawful for an employer to discriminate against or victimise employees and people seeking work. It applies where the employer is making arrangements to fill a job, and in respect of anything done in the course of a person’s employment. In respect of discrimination relating to sex or pregnancy and maternity, a term of an offer of employment which relates to pay is treated as discriminatory where, if accepted, it would give rise to an equality clause or if that is not the case where the term is directly discriminatory. It also imposes the reasonable adjustments duty set out in clause 20 on employers in respect of disabled employees and applicants.

 
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Prepared: 19 November 2009