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Background

655.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995.

Examples

  • The manager of a large shop in a national chain installs a ramp, automatic entry doors, hearing induction loops and waives the “no dogs policy” in respect of assistance dogs, to comply with the duty to make reasonable adjustments.

  • A police officer is carrying out a public function when interviewing a witness who is deaf. Arranging a British Sign Language / English interpreter for the interview might be a reasonable adjustment to make.

  • It might be a reasonable adjustment for a rail service provider to arrange an alternative catering service for disabled people who cannot get to the buffet or dining car, or to provide assistance from staff where passengers have a sensory or physical impairment.

Schedule 3: Services and public functions: exceptions

656.     This Schedule sets out exceptions from the prohibitions on discriminating against, harassing or victimising a person when providing services or exercising a public function set out in clause 28 of the Bill.

Part 1: Constitutional matters: paragraphs 1-5

Effect

657.     Part 1 of this Schedule provides that the prohibitions do not apply to:

  • the exercise of parliamentary functions and functions linked to the undertaking of parliamentary business;

  • preparing, making, approving or considering primary legislation or particular forms of secondary legislation, including legislation of the Scottish Parliament and the National Assembly for Wales;

  • exercising judicial functions or deciding not to commence or continue criminal proceedings

658.     Part 1 also provides that the prohibition on discriminating against a person when exercising a public function does not apply to the armed forces in respect of the protected characteristics of age, disability, gender reassignment and sex when the reason for such acts is to ensure combat effectiveness.

659.     It also provides that the prohibitions on discriminating against, harassing or victimising a person when providing a service or exercising a public function do not apply to the Security Service, the Security Intelligence Service, the Government Communication Headquarters (GCHQ) or any part of the armed forces assisting GCHQ.

Background

660.     Part 1 of this Schedule is designed to replicate the effect of exceptions contained in current legislation where discrimination, harassment and victimisation in the exercise of a public function is already prohibited, and apply the exception to relevant protected characteristics.

Examples

  • Activity related to the preparation and making of primary legislation, such as this Bill, would be excepted from the prohibition on discrimination. However, activity related to the making of a bye-law by a local authority would not be within the exceptions in this Schedule.

  • A decision of a judge on the merits of a case would be within the exceptions in this Schedule. An administrative decision of court staff, about which contractor to use to carry out maintenance jobs or which supplier to use when ordering stationery would not be.

Part 2: Education

Education: paragraph 6

Effect

661.     Paragraph 6 provides that the prohibitions on discrimination in Part 3 do not, so far as they relate to age, or religion or belief, apply to a local authority performing its function under sections 13 and 14 of the Education Act 1996 which relate to providing primary and secondary schools for children in a given catchment area.

Background

662.     Similar exceptions for religion or belief were in the Equality Act 2006. The age exceptions are new because of the extension of age discrimination law in this Bill.

663.     The reason for the provision in paragraph 6 is to prevent a local authority being bound to provide schools for pupils of different faiths, or no faith, or for particular age groups, in every catchment area.

Examples

  • Catholic parents will not be able to claim that their local authority is discriminating unlawfully if there is no Catholic school in their catchment area, or if there are fewer places in Catholic schools than in Church of England schools.

  • Parents of secondary age children will not be able to claim that it is age discrimination if their children have to travel further than younger ones to reach their school.

Education: paragraph 7

Effect

664.     Paragraph 7 makes similar provision for Scotland as is made by paragraph 6.

Education: paragraph 8

Effect

665.     This paragraph provides an exception from the prohibition on sex discrimination in Part 3 in relation only to the establishment of a school. A local authority will not be prevented from establishing single sex schools, but must provide similar numbers of places for boys and girls.

Background

666.     This provision is designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

Education: paragraph 9

Effect

667.     Paragraph 9 excepts from the prohibition on age discrimination in Part 3 (to the extent that it is not excepted elsewhere), the exercise by any public authority of functions in a number of areas that relate to schools.

Background

668.     These exceptions ensure that policies and practices which relate to things which schools are allowed to do under the Bill do not become unlawful when carried out by public authorities.

Examples

  • School admissions policies can continue to be based on the ages of prospective pupils.

  • School transport can be provided for children of a particular age only.

Education: paragraph 10

Effect

669.     Paragraph 10 provides an exception for local authorities, from the provisions requiring reasonable adjustments in Part 3, in respect of their activities in relation to school education, from the requirement to alter physical features of premises or provide auxiliary aids and services when making reasonable adjustments for disabled people.

Background

670.     These exceptions are designed to replicate the effect of provisions in the Disability Discrimination Act 1995 and ensure that local authorities, when carrying out their education functions, do not have to take account of altering physical features or providing auxiliary aids and services since such things will fall within the requirements on them to produce accessibility strategies as set out in Schedule 12. This mirrors the requirements placed on schools themselves

Education: paragraph 11

Effect

671.     Paragraph 11 provides an exception from the prohibition on religious or belief-related discrimination in Part 3 (to the extent that it is not excepted elsewhere), in relation to the exercise by any public authority of functions in a number of areas that relate to faith and non-faith educational institutions. In relation to all schools those areas are the curriculum, collective worship, school transport and the establishment, alteration and closure of schools; and in relation to schools which have a religious ethos the exception also applies to admission of pupils and the responsible body of such a school.

Background

672.     This provision is designed to replicate the effect of provisions in Part 2 of the Equality Act 2006. It ensures that policies and practices which relate to things which schools are allowed to do under the Bill do not become unlawful when carried out by public authorities.

Examples

  • A public authority will not be open to claims of religious discrimination as a result of its decision to establish, alter or close a faith school.

  • A local authority can select a person of a particular religion or belief to be a governor of a school with a religious ethos.

Part 3: Health and care

Blood services: paragraph 13

Effect

673.     Paragraph 13 provides that it is not unlawful for a person operating a blood service to refuse to accept someone’s donation of blood provided they have reliable evidence that accepting it would put the public or the individual donor at risk and that such a refusal would not be unreasonable.

674.     A blood service is a service that collects donations of human blood and blood components to use for medical purposes, for example the NHS Blood and Transplant Special Health Authority.

675.     “Blood” includes components, for instance plasma or red blood cells.

Background

676.     This provision is designed to replicate the effect of Regulation 28 of the Equality Act (Sexual Orientation) Regulations 2007, and extend the exception to the other protected characteristics. It also provides that a refusal to allow somebody to donate blood or blood components because of a risk to the donor’s own health would not be unlawful.

Examples

  • If there is evidence that people who have been sexually active in a particular country are more likely to be infected with HIV, the operator of the blood service can refuse to accept donations of blood or blood components from people who have been sexually active there, even if that disproportionately affects members of a particular nationality and so might otherwise be unlawful indirect discrimination because of race.

  • If there is evidence that women who have recently given birth are likely to suffer detrimental effects from giving blood or blood components, then a blood service can refuse to accept donations from them. This would not be unlawful direct discrimination because of maternity.

Health and Safety: paragraph 14

Effect

677.     Paragraph 14 provides that it is not unlawful for a person to discriminate against a pregnant woman by refusing to provide her with a service or only providing the service to her on certain conditions if they reasonably believe that to do otherwise would create a risk to her health or safety and they would take similar measures in respect of persons with other physical conditions.

Background

678.     Provisions making it unlawful for a person to discriminate against a pregnant woman in the provision of services were introduced into the Sex Discrimination Act 1975 by the Sex Discrimination (Amendment) Regulations 2008. Those provisions contain an equivalent exception on health and safety grounds.

Example

  • A leisure centre could refuse to allow a pregnant woman to use certain gym equipment (for example, a rowing machine) after a certain point in her pregnancy if it reasonably believed that allowing her to use the equipment would create a risk to her health and safety and it would also refuse, for example, to allow a man with a serious heart condition to use the equipment.

  • An airline could refuse to allow a pregnant woman to travel beyond her 35th week of pregnancy if it reasonably believed that allowing her to travel would create a risk to her health and safety and it would also refuse people with other physical conditions to travel.

Care within the family: paragraph 15

Effect

679.     Paragraph 15 is designed to ensure that people who provide foster care, or other similar forms of care, in their own home are not subject to the prohibitions on discriminating against, harassing or victimising a person in the provision of services while providing that care.

680.     It applies irrespective of whether or not the person is paid for providing the care service.

Background

681.     Similar provisions exist in current legislation for race, religion or belief and sexual orientation. This provision extends the exception to all of the protected characteristics.

Examples

  • A Muslim family could choose to foster only a child of the same religion. This would not constitute discrimination against a non-Muslim child.

  • A woman who is the main carer for her mother decides to provide care for another person too, and decides to restrict any offer of care to another woman. This would not constitute discrimination against a man who needed similar care.

Part 4: Immigration

Disability: paragraph 16

Effect

682.     Paragraph 16 provides an exception from the prohibition on discriminating against a person when providing a service or exercising a public function because they have a disability, in relation to certain immigration decisions, including making a decision not to allow someone to enter the country or a decision not to allow them to remain in the country. However, this exception only applies where the decision is necessary for the public good.

Background

683.     This is a new exception.

684.     An express exception was not previously needed since the Disability Discrimination Act 1995 did not prohibit direct discrimination in the provision of services or exercise of a public function and because disability related discrimination, which did apply to the provision of services or exercise of a public function, could be justified if it was necessary for a number of reasons, including not to endanger the health or safety of any person.

Nationality and ethnic or national origins: paragraph 17

Effect

685.     Paragraph 17 provides an exception from the prohibition on discriminating against a person in the provision of services or the exercise of a public function because of their ethnic or national origins or nationality, in relation to the exercise of immigration functions.

Background

686.     This is designed to replicate the effect of an existing provision in the Race Relations Act 1976.

Example

  • Different visa requirements for nationals of different countries, which arise for a variety of historical and political reasons, do not constitute unlawful race discrimination.

  • Granting asylum to members of a minority ethnic group being targeted by the majority ethnic group in a country would similarly not be unlawful discrimination.

Religion or belief: paragraph 18

Effect

687.     Paragraph 18 provides an exception from the prohibition on discriminating against a person in the provision of services or the exercise of a public function because of their religion or belief in relation to decisions not to allow someone to enter the country or to remove someone from the country, if that decision is made on the grounds that it is conducive to the public good to exclude that person from the country or it is not desirable to permit the person to remain in United Kingdom.

688.     It also provides an exception for decisions relating to an application for entry clearance or leave to enter to cover people entering the country to provide services in connection with religion or belief, such as a Minister or clergyman.

Background

689.     This is designed to replicate the effect of provisions in the Equality Act 2006.

Examples

  • The immigration services may differentiate between certain religious groups in order to allow a person such as a Minister of Religion to enter the UK to provide essential pastoral services, without being challenged by groups which could operate against the public interest, but which might also claim to represent a religion.

  • 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.

Part 5: Insurance

Disability: paragraph 20

Effect

690.     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.

Background

691.     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.

Example

  • 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

692.     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.

693.     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.

694.     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.

695.     Insurers must calculate premiums and benefits based on the legal sex of the person seeking such services (sub-paragraph (5)).

Background

696.     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 premises or education are dealt with under Parts 4 and 6 of the Bill.

Examples

  • 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 premiums and benefits.

Existing insurance policies: paragraph 22

Effect

697.     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.

Background

698.     This paragraph allows for existing insurance policies to have continuing protection for their pricing structure and other aspects of the insurance policy which may not meet subsequently altered discrimination law. This is to prevent policies from becoming invalid. Any policy that is then renewed would have to be altered to meet discrimination law requirements.

Examples

  • 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.

Part 6: Separate and single services

Separate services for the sexes: paragraph 23

Effect

699.     Paragraph 23 contains exceptions to the general prohibition of sex discrimination which allow the provision of separate services for men and women

700.     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.

701.     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 provided.

Background

702.     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.

Example

  • 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 as effective.

Single-sex services: paragraph 24

Effect

703.     Paragraph 24 contains exceptions to the general prohibition of sex discrimination to allow the provision of single-sex services.

704.     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);

  • 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.

705.     In each case, the separate provision has to be objectively justified.

706.     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 provided.

Background

707.     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.

Examples

708.     These exceptions would allow:

  • a cervical cancer screening service to be provided to women only, as only women need the service;

  • a fathers’ support group to be set up by a private nursery as there is insufficient attendance by men at the parents’ 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.

 
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Prepared: 19 November 2009