Equality Bill - continued          House of Commons

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Background

325.     These provisions are designed to make similar provision to those in the Disability Discrimination Act 1995 and to extend protection to all the protected characteristics covered by this chapter. There are some changes to the provisions concerning when reasonable adjustments do not need to be made for disabled candidates. Previously Awarding Bodies were not required to make reasonable adjustments to a competence standard, but there was some confusion as to what was a competence standard in these qualifications. Under these provisions it is the regulator that will make the decision, after consultation, about what cannot be reasonably adjusted. This will create more transparency and consistency in the application of reasonable adjustments.

Examples

  • A qualifications body refuses to allow a girl to undertake a GCSE in woodwork. This would be direct discrimination.

  • A visually impaired candidate is granted a modified paper (enlarged font) in order that she can read her English GCSE exam.

  • The regulator identifies a maximum percentage of a qualification that qualifications bodies are able to exempt.

  • The regulator publishes a requirement on qualifications bodies not to use a specific reasonable adjustment, such as a reader in the independent reading element of a GCSE English exam.

Clause 94: Interpretation

Effect

326.     This clause explains what is meant by terms used in clause 93. It defines a qualifications body as an authority or body which awards a qualification, and sets out what it is not. It also defines a qualification as a certificate or authorisation of a set description.

Background

327.     This clause is designed to replicate the effect of provisions in current legislation.

Examples

  • Edexcel is an example of a qualifications body.

  • A GCSE is an example of a qualification.

Chapter 4: Miscellaneous

Clause 95: Reasonable adjustments

Effect

328.     This clause introduces the provisions of Schedule 13, concerning the making of reasonable adjustments to ensure that disabled pupils are not placed at a substantial disadvantage in comparison to non-disabled pupils. These provisions are explained in more detail in the notes to that Schedule.

Clause 96: Educational charities and endowments

Effect

329.     This clause introduces the provisions of Schedule 14, concerning educational charities which restrict benefits to a single sex and provides for such restrictions to be modified.

PART 7: ASSOCIATIONS

Clause 97: Application of this Part

Effect

330.     This clause provides that this Part of the Bill, which prohibits discrimination, harassment and victimisation by associations, does not make it unlawful for an association to discriminate against or harass people because of marriage or civil partnership.

331.     It also provides that, if an act of discrimination, harassment or victimisation is made unlawful by the Parts of the Bill covering services and public functions, premises, work or education, then those provisions, rather than the provisions in this Part, apply.

Background

332.     This clause is designed to replicate the position in current legislation.

Clause 98: Members and associates

Effect

333.     This clause makes it unlawful for an association to discriminate against, harass or victimise an existing or potential member, or an associate. This means that an association cannot refuse membership to a potential member or grant it on less favourable terms because of a protected characteristic. It does not, however, prevent associations restricting their membership to people who share a protected characteristic (see Schedule 16). It also means that an association cannot, among other things, refuse an existing member or associate access to a benefit or deprive him or her of membership or rights as an associate respectively because of a protected characteristic covered by this Part.

Background

334.     Current legislation provides protection from discrimination, harassment and victimisation by associations against existing or potential members and associates because of race, disability and sexual orientation. This clause is designed to replicate the effect of the provisions in current legislation, and to extend protection to the characteristics of gender, age, religion or belief, pregnancy and maternity, and gender reassignment.

Examples

  • A gentlemen’s club refuses to accept a person’s application for membership or charges him a higher subscription rate because he is Muslim. This would be direct discrimination.

  • A private members’ golf club, which has members of both sexes, requires its female members to play only on certain days while allowing male members to play at all times. This would be direct discrimination.

Clause 99: Guests

Effect

335.     This clause makes it unlawful for an association to discriminate against, harass or victimise existing or potential guests. In particular, an association cannot refuse to invite a person as a guest because of a particular characteristic or invite that person on certain conditions which the association would not apply to other would-be guests. Equally, a guest cannot be refused access to a benefit simply because of a protected characteristic or subject to any other detriment.

Background

336.     Current legislation provides protection to existing and potential guests of associations because of disability only. This clause extends similar protection to all protected characteristics covered by this Part.

Example

  • An association refuses to invite the disabled wife of a member to attend an annual dinner, which is open to all members’ partners, simply because she is a wheelchair user. This would be direct discrimination.

Clause 100: Sections 98 and 99: further provision

Effect

337.     This clause imposes on associations the duty to make reasonable adjustments for disabled members and guests.

338.     This clause also provides that the Bill does not prohibit harassment of members, potential members, associates, guests and potential guests because of religion or belief or sexual orientation.

Clause 101: Selection of candidates

Effect

339.     This clause allows registered political parties to make arrangements in relation to the selection of election candidates to address the under-representation of people with particular protected characteristics in elected bodies.

340.     These arrangements include single-sex shortlists for election candidates, but not shortlists restricted to people with other protected characteristics.

341.     This provision applies to the selection of candidates in relation to elections to Parliament, local government, the European Parliament, to the Scottish Parliament and to the National Assembly for Wales.

Background

342.      For sex, the clause replicates similar provisions in the Sex Discrimination Act 1975, as amended by the Sex Discrimination (Election Candidates) Act 2002, relating to the selection of candidates. For the other protected characteristics this clause introduces new provisions allowing political parties to take action in their selection arrangements in order to address under-representation in elected bodies, short of shortlists restricted to people with a particular protected characteristic. This will, for instance, allow political parties to reserve places on relevant electoral shortlists for people with a specific protected characteristic such as race, disability etc.

Examples

  • A political party can have a women-only short-list of potential candidates to represent a particular constituency in Parliament, provided women remain under-represented in the party’s Members of Parliament.

  • A political party cannot shortlist only black or Asian candidates for a local government by-election. However, if Asians are under-represented amongst a party’s elected councillors on a particular Council, the party could choose to reserve a specific number of seats for Asian candidates on a by-election shortlist.

Clause 102: Time-limited provision

Effect

343.     This clause is linked to the provisions in clause 101 relating to the selection of candidates by registered political parties. It provides that the provision in clause 101 (7) which permits single-sex shortlists for election candidates in order to address under-representation in elected bodies will be repealed automatically at the end of 2030 unless an order is made by a Minister of the Crown to extend it beyond that date.

344.     This clause also extends the expiry date for the similar provisions in the Sex Discrimination (Election Candidates) Act until 2030, so far as they apply to Northern Ireland.

Background

345.     The clause replicates similar provisions in the Sex Discrimination (Election Candidates) Act 2002, but extends the expiry date for those provisions to 2030.

Clause 103: Interpretation and exceptions

Effect

346.     This clause explains what is meant by terms used in Part 7 of the Bill. It defines an association as a body with 25 or more members where access to membership is controlled by rules and involves a genuine selection process based on personal criteria. It gives a Minister of the Crown power to amend this definition so as to change the number of members required by the definition.

347.     It also provides that people who have any kind of membership of a particular association are protected by this Part, as are associates, who are not members of an association, but have many of the rights of members as a consequence of being a member of another association.

348.      The exceptions which apply to this Part of the Bill are contained in Schedule 16.

Background

349.     The substance of the definition of an association remains unchanged from that used in the Race Relations Act 1976.

Examples

  • Associations include: private members’ golf clubs and gentlemen’s clubs where applicants for membership are required to make a personal application, be sponsored by other members and go through some kind of selection process.

  • Membership would cover full membership, associate membership, temporary membership and day membership.

  • Casinos, nightclubs and gyms, where payment of the requisite “membership” fee is all that is required to secure admittance are not associations for the purposes of this Part. These are covered instead by the provisions in Part 3 concerning services provided to the public.

  • A book club run by a group of friends which has no formal rules governing admittance or whose membership is less than 25 is not an association for the purposes of this Part.

PART 8: PROHIBITED CONDUCT: ANCILLARY

Clause 104: Relationships that have ended

Effect

350.     This clause makes it unlawful to discriminate against or harass someone after a relationship covered by the Bill has ended.

351.     It covers any former relationship in which the Bill prohibits one person from discriminating against or harassing another, such as in employment, or in the provision of goods, facilities and services. It is designed to ensure that treatment of the kind made unlawful by the Bill which results from, and is closely linked to, the existence of a relationship is still unlawful even though the relationship no longer exists.

352.     This provision applies to conduct which takes place after the Bill is commenced, whether or not the relationship in question ended before that date. If the conduct occurred before this clause was commenced, it would be dealt with under the current legislation.

353.     This clause also requires reasonable adjustments to be made for disabled people even after a relationship has ended, if they continue to be at a substantial disadvantage in comparison to people without a disability. 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.

354.     A breach of this clause triggers the same enforcement procedures as if the treatment had occurred during the relationship. However, if the treatment which is being challenged constitutes victimisation, it will be dealt with under the victimisation provisions and not under this clause.

Background

355.     This clause replaces similar provisions in current legislation. It also extends the protection after a relationship has ended to cover discrimination outside the workplace because of religion or belief and sexual orientation. It will provide similar protection against age discrimination and harassment outside the workplace when the age protection provisions are commenced.

Examples

  • A school or employer refuses to give a reference to an ex-pupil or ex-employee because of their religion of belief. This would be direct discrimination.

  • A builder or plumber addresses abusive and hostile remarks to a previous customer because of her gender after their business relationship has ended. This would be harassment. It would not be harassment, however, where the reason for the treatment was not the customer’s gender but, for example, a dispute over payment.

  • A disabled former employee’s benefits include life-time use of the company’s in-house gym facilities. The employer or owner of the premises must make reasonable adjustments to enable the former employee to continue using the facilities even after she has retired.

Clause 105: Liability of employers and principals

Effect

356.     This clause makes employers and principals liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment or by their agents acting under their authority. It does not matter whether or not the employer or principal knows about or approves of those acts.

357.     However, employers who can show that they took all reasonable steps to prevent their employees from acting unlawfully will not be held liable.

358.     Employers and principals cannot be held liable for any criminal offences under the Bill that are committed by their employees or agents, except for those in the provisions on transport services for disabled people in Part 12 of the Bill.

Background

359.     This clause replaces similar provisions in current legislation. It is designed to ensure that employers and principals are made responsible for the acts of those over whom they have control. The clause works together with the provisions on “Liability of employees and agents” (clause 106), “Instructing, causing or inducing discrimination” (clause 107), and “Aiding contraventions” (clause 108) to ensure that both the person carrying out an unlawful act and any person on whose behalf they were acting can be held to account where appropriate.

Examples

  • A landlord (the principal) instructs an agent to collect rent at a property. The agent harasses an Asian couple, who bring a claim in which the agent is held to have acted unlawfully. The principal may be held liable for breaching the harassment provisions even if unaware of the agent’s actions.

  • A shop owner becomes aware that her employee is refusing to serve disabled customers. The employer tells the employee to treat disabled customers in the same way as other customers and sends the employee on a diversity training course. However, the employee continues to treat disabled customers less favourably. One such customer brings a claim against both the employee and the employer. The employer may avoid liability by arguing that she took all reasonable steps to stop the employee from acting in a discriminatory way.

Clause 106: Liability of employees and agents

Effect

360.     This clause makes an employee personally liable for unlawful acts committed in the course of employment where, because of clause 105, the employer is also liable - or would be but for the defence of having taken all reasonable steps to prevent the employee from doing the relevant thing. An agent would be personally liable under this clause for any unlawful acts committed under a principal’s authority. However, an employee or agent will not be liable if he or she has been told by the employer or principal that the act is lawful and he or she reasonably believes this to be true.

361.     Subsections (4) and (5) make it an offence, punishable by a fine of (currently) up to £5,000, if an employer or principal knowingly or recklessly makes a false statement about the lawfulness of doing something under the Bill.

362.     This clause does not apply to discriminatory acts done by an employee or agent on the grounds of disability in relation to schools because claims for disability discrimination in schools cannot be enforced against individuals.

Background

363.     This clause incorporates some of the elements in the “Aiding unlawful acts” provisions in current discrimination legislation. It takes a more direct approach and unlike the existing provisions it is not necessary to show that the employee or agent knew that the act was unlawful.

Example

  • A factory worker racially harasses her colleague. The factory owner would be liable for the worker’s actions, but is able to show that he took all reasonable steps to stop the harassment. The colleague can still bring a claim against the factory worker in an employment tribunal.

  • A principal instructs an agent to sell products on her behalf. The agent discriminates against a disabled customer. Both the principal and the agent are liable, but the courts are able to determine that evidence provided by the principal indicate the authority given to the agent did not extend to carrying out an authorised act in a discriminatory manner. The disabled customer can still bring a claim against the agent.

Clause 107: Instructing, causing or inducing discrimination

Effect

364.     This clause makes it unlawful for a person to instruct, cause or induce someone to discriminate against, harass or victimise another person, or to attempt to do so.

365.     It provides a remedy for both the recipient of the instruction and the intended victim, whether or not the instruction is carried out, provided the recipient or intended victim suffers a detriment as a result.

366.     However, the clause only applies where the person giving the instruction is in a relationship with the recipient of the instruction in which discrimination, harassment or victimisation is prohibited.

367.     The Equality and Human Rights Commission can enforce this clause using its statutory powers under the Equality Act 2006. Equally, both the recipient of the instruction and the intended victim can bring individual claims for breach of this clause against the person giving the instructions so long as they have suffered a detriment as a result. A claim brought by the recipient of the instruction will be dealt with in the same forum (employment tribunal or county courts) as a direct claim for discrimination, harassment or victimisation against the person giving the instruction would be. A claim brought by the intended victim against the person giving the instruction will be dealt with in the same forum as a claim for discrimination, harassment or victimisation against the person carrying out the instruction would be.

Background

368.     This clause replaces provisions in current legislation in relation to race, sex, gender reassignment, pregnancy and maternity, age (within the workplace) disability (within the workplace), religion or belief (outside of the workplace) and sexual orientation (outside of the workplace). It extends protection to all protected characteristics in all areas covered by the Bill and allows the Equality and Human Rights Commission to bring enforcement proceedings in relation to any action in breach of the clause. (Previously the Equality and Human Rights Commission’s enforcement powers were not uniform even between the strands and fields where there were provisions on instructions to discriminate). The provision expressly allowing persons instructed to bring proceedings is new (other than in relation to age for the workplace where such provision already exists), and is designed to codify the current position in common law (see Weathersfield v Sargent [1999] IRLR 94). The provision expressly allowing the intended victim to bring proceedings, even where the instruction is not carried out, is also new and is designed to ensure greater clarity about the protection under current legislation.

Example

  • A GP instructs his receptionist not to register anyone with an Asian name. The receptionist would have a claim against the GP if subjected to a detriment for not doing so. A potential patient would also have a claim against the GP if she discovered the instruction had been given and was put off applying to register. The receptionist’s claim against the GP would be brought before the employment tribunal as it relates to employment, while the potential patient’s claim would be brought in the county court as it relates to services.

Clause 108: Aiding contraventions

Effect

369.     This clause makes it unlawful for a person to help someone carry out an act which he or she knows is unlawful under the Bill. However, this is not unlawful if the person giving assistance has been told that the act is lawful and he or she reasonably believes this to be true.

370.     It makes it an offence, punishable by a fine of (currently) up to £5,000, if a false statement is knowingly or recklessly made about the lawfulness of doing something under the Bill.

371.     For the purposes of enforcement, breaches of the prohibition on aiding contraventions are dealt with under the same procedures in the Bill as the contraventions themselves.

Background

372.     This clause is designed to replicate the effect of similar provisions in current legislation. It ensures that a person who helps another to do something which they know to be prohibited by the Bill is liable in their own right. Taken together with the provisions on “Liability of employers and principals” (clause 105), “Liability of employees and agents” (clause 106) and “Instructing, causing or inducing discrimination” (clause 107) this clause is designed to ensure that both the person carrying out an unlawful act and any person on whose behalf or with whose help they were acting can be held to account where appropriate.

Example

  • On finding out that a new tenant is gay, a landlord discriminates against him by refusing him access to certain facilities, claiming that they are not part of the tenancy agreement. Another tenant knows this to be false but joins in with the landlord in refusing the new tenant access to the facilities in question. The new tenant can bring a discrimination claim against both the landlord and the tenant who helped him.

PART 9: ENFORCEMENT

Chapter 1: Introductory

Clause 109: Proceedings

Effect

373.     This clause applies the provisions of Part 9 to claims made under the Bill. These claims must be brought either in a county court (sheriff court in Scotland) or in an employment tribunal. Clauses 110 and 116 set out which claims should be brought in the civil courts and which in tribunals.

374.     This clause does not affect the enforcement powers of the Equality and Human Rights Commission which are in Part 1 of the Equality Act 2006. Nor does it prevent judicial review proceedings (or the equivalent in Scotland) or certain immigration proceedings related to compliance with the Bill’s provisions.

 
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Prepared: 19 November 2009