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Background

817.     This paragraph is designed to replicate the effect of provisions in the Sex Discrimination Act 1975. It does for non-contractual terms and conditions of employment relating to pay what is done for contractual terms in clause 70.

Examples

  • An employer would not have to pay a woman on maternity leave a discretionary bonus if the only condition of eligibility for the bonus was that the employee must be in active employment at the time of payment.

  • If a discretionary bonus amounted to retrospective payment for time worked over a specific period (such as the past year) during which a woman took maternity leave, the employer must include any part of that period the woman spent on compulsory maternity leave in calculating the bonus.

Benefits dependent on marital status: paragraph 18

Effect

818.     This paragraph concerns a specific exception to the prohibition of discrimination because of sexual orientation in the field of employment and occupation. The exception concerns the provision of benefits by reference to marital status in respect of periods of service before the coming into force of the Civil Partnership Act 2004. It also concerns benefits restricted to married persons and civil partners.

Background

819.     This exception is currently set out in regulation 25 of the Employment Equality (Sexual Orientation) Regulations 2003, and the intention is to preserve the effect of that regulation.

Examples

  • An example of an employment benefit provided by reference to marital status is an occupational pension scheme which pays benefits to an employee's spouse on the death of the employee, but does not similarly compensate an unmarried employee's partner.

  • A scheme which pays out only to surviving married and civil partners could be indirectly discriminatory because it might disadvantage gay couples, but it is permitted by the exception.

  • A scheme which pays out to surviving married partners must also pay out to surviving civil partners in respect of any employee service since 5 December 2005 (when the Civil Partnership Act 2004 came into force). Provided the scheme does that, the exception allows it, even though it may (directly or indirectly) discriminate by paying out only to married partners for service before that date.

Provision of services, etc to the public: paragraph 19

Effect

820.     This paragraph provides that an employer who provides services to the public at large is not liable for claims of discrimination or victimisation by an employee under Part 5 of the Bill in relation to those services. Rather, where individuals are discriminated against or victimised in relation to those services, they can make a claim in the county court under Part 3. If on the other hand the service differs from that provided to other employees, is provided under the terms and conditions of employment, or the service is to do with training, the individual can bring a claim in an employment tribunal for breach of the provisions in Part 5. These provisions are also applicable to services provided by principals, firms, LLPs and relevant persons (in respect of personal or public office holders).

Background

821.     This clause is designed to replace similar provisions in current legislation and has been extended to partnerships.

Examples

  • If an employee of a car hire company is denied the hire of one of its cars (on the same terms available to the general public) because he is black, the employee must claim under the “services” section of the Bill in the county court, rather than through an employment tribunal under the “work” provisions of the Bill.

  • If the same employee’s employment contract provides that he is allowed to hire the company’s cars at a discount (which members of the public would not get), but the employee is refused the discount when he goes to hire one of the firm’s cars because he is a Muslim, then the employee would be able to make a discrimination claim under clause 37.

Insurance contracts etc.: paragraph 20

Effect

822.     This paragraph applies where annuities, life assurance policies, accident insurance policies or similar matters which involve the assessment of risk are provided in the field of employment. It allows for employers to provide for payment of premiums or benefits that differ for men and women, persons who are or are not married or in a civil partnership, pregnancy or maternity or gender reassignment so far as this is reasonable in the light of actuarial or other reliable data.

Background

823.     This paragraph is designed to replace a similar exception in the Sex Discrimination Act 1975. However it ensures that any employment related insurance benefit is treated similarly to that provided by a financial services provider relying upon the services exception in Part 5 of Schedule 3. It means that where an employer has relied on relevant information, any complaint about discrimination in relation to the policy is to be taken with the insurer, through the county court rather than with the employer through the employment tribunal.

Example

  • An employer makes access to a group insurance policy available as a result of being employed by it. It properly instructs the insurer to draw up the terms on a non-discriminatory basis. An employee or former employee considers that she has been discriminated against under the terms of the policy. Her right of action is against the insurer, rather than against the employer.

Schedule 10: Accessibility for disabled pupils

824.     This Schedule provides for accessibility arrangements for pupils in schools as set out in clause 85.

Effect

825.     Local authorities must prepare written accessibility strategies which will increase disabled pupils’ access to the school curriculum, improve the physical environment for such pupils and improve the provision of information to them. Strategies must be implemented by local authorities after taking account of pupils’ disabilities and preferences expressed by them and their parents. They should be reviewed regularly, and revised if needed.

826.     Local authorities must have regard to the need to allocate adequate resources to implementation of the strategy and use any guidance which may be issued by a Minister of the Crown in England and the Welsh Ministers in Wales.

827.     Schools must develop written accessibility plans which will increase the access of disabled pupils to the school curriculum to disabled pupils, improve the physical environment for such pupils and improve the provision of information to them. Plans must be implemented by schools after taking account of disabled pupils’ disabilities and preferences expressed by them and their parents. They should be reviewed regularly, and revised if needed. Inspections of schools by OFSTED can look at the performance of these duties by schools.

828.     Schools must have regard to the need to allocate adequate resources to the plans.

829.     If a Minister of the Crown in England or the Welsh Ministers in Wales determine that a maintained school or Academy or local authority has failed to discharge these duties, has acted unreasonably in respect of these duties or has failed to comply with an order of the First-tier Tribunal or the Special Educational Needs Tribunal for Wales, they may give directions to the school or local authority about discharging the duty or compliance with the order.

830.     Paragraph 6 gives a power, in England to a Minister of the Crown, and in Wales the Welsh Ministers, to make regulations to say what is, and is not, education and a benefit, facility or service.

Background

831.     These provisions are designed to replicate the effect of provisions in the Disability Discrimination Act 1995, and require schools and local authorities to plan to make all aspects of school more accessible to disabled pupils, particularly as the requirement to make reasonable adjustments to physical features of premises does not apply to schools.

Example

  • A school discusses with its disabled pupils their needs and requirements in order to help it develop a written accessibility plan. The plan includes a strategy to improve the physical environment of the school by putting in ramps and more easily accessible rooms, putting in hearing loops and producing newsletters in Braille.

Schedule 11: Schools: exceptions

Part 1: Sex discrimination

832.     Part 1 of this Schedule makes exceptions from the prohibition on sex discrimination by schools in clause 82 to allow for the existence of single-sex schools and for single-sex boarding at schools, and to make transitional provisions for single-sex schools which are turning co-educational.

Background

833.     These provisions are designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

Admission to single sex schools: paragraph 1

Effect

834.     This paragraph allows a single-sex school to refuse to admit pupils of the opposite sex. A school is defined as single-sex if it admits pupils of one sex only. This is so even if it admits a small number of pupils of the opposite sex on an exceptional basis or in relation to particular courses or classes only. Limiting those pupils to particular courses or classes is not discrimination. However, other forms of sex discrimination by the school against its opposite-sex pupils would still be unlawful.

Examples

  • A school which admits only boys is not discriminating unlawfully against girls.

  • If the daughters of certain members of staff at a boys’ school are allowed to attend, it is still regarded as a single-sex school.

  • A boys’ school which admits some girls to the Sixth Form, or which lets girls attend for a particular GCSE course not offered at their own school is still regarded as a single-sex school.

  • A boys’ school which admits girls to A-level science classes is not discriminating unlawfully if it refuses to admit them to A-level media studies or maths classes.

  • A boys’ school which admits girls to the Sixth Form but refuses to let them use the same cafeteria or go on the same visits as other Sixth Form pupils would be discriminating unlawfully against them.

Single-sex boarding at schools: paragraph 2

Effect

835.     This paragraph provides that a mixed-sex school some of whose pupils are boarders may lawfully admit only pupils of one sex to be boarders. The exception applies even if some members of the other sex are admitted as boarders, so long as their numbers are comparatively small. It allows a school to refuse to admit a pupil to a boarding place at the time they initially join the school, or to provide them with boarding facilities at a later stage.

Example

  • A mixed sex school has facilities for female boarders and can lawfully state in its prospectus that males cannot be accepted as boarders.

Single-sex schools turning co-educational: paragraphs 3 and 4

Effect

836.     Paragraphs 3 and 4 enable a school which is going through the process of changing from a single-sex to a co-educational institution to apply for a transitional exemption order to enable it to continue to restrict admittance to a single sex until the transition from single-sex is complete.

837.     Paragraph 4 sets out the procedures for applying for a transitional exemption order for each type of school.

Examples

  • If a transitional exemption is order made in accordance with the arrangements in paragraph 4:

  • A boys’ school which decides to become co-educational by starting to admit girls to Year 7 while keeping upper classes as they are, will not be discriminating unlawfully by refusing to admit girls to other years, until co-educational classes have been phased in throughout the school.

  • A girls’ school which decides to become co-educational by initially admitting a certain number of boys to each year group will not be discriminating unlawfully by reserving a number of places in each year group for boys.

  • A school in the process of becoming co-educational must treat its male and female pupils equally once they have been admitted, since the transitional exemption order only relates to admissions.

Part 2: Religious or belief-related discrimination

838.     Part 2 of this Schedule makes some exceptions to the prohibition on discrimination because of religion or belief in relation to schools with a religious character, and to acts of worship or other religious observance in any school.

Background

839.     These exceptions, and the amending powers in paragraph 7, are designed to replicate the effect of provisions in Part 2 of the Equality Act 2006.

Schools with religious character: paragraph 5

Effect

840.     This paragraph allows schools which have a religious character or ethos (often referred to as faith schools) to discriminate because of religion or belief in relation to admissions and in access to any benefit, facility or service. It means that faith schools may have admissions criteria which give preference to members of their own religion and it allows them to conduct themselves in a way which is compatible with their religious character or ethos. It does not allow faith schools to discriminate on any other of the prohibited grounds, such as sex, race or sexual orientation. Nor does it allow them to discriminate on religious grounds in other respects, such as by excluding a pupil or subjecting him to any other detriment.

Examples

  • A Muslim school may give priority to Muslim pupils when choosing between applicants for admission (although the Admissions Code will not allow it to refuse to accept pupils of another or no religion unless it is oversubscribed). However, it may not discriminate between pupils on other prohibited grounds, such as by refusing to admit a child of the school’s own faith because she is black or a lesbian.

  • A Jewish school which provides spiritual instruction or pastoral care from a rabbi is not discriminating unlawfully by not making equivalent provision for pupils from other religious faiths.

  • A Roman Catholic school which organises visits for pupils to sites of particular interest to its own faith, such as a cathedral, is not discriminating unlawfully by not arranging trips to sites of significance to the faiths of other pupils.

  • A faith school would be acting unlawfully if it sought to penalise or exclude a pupil because he or she had renounced the faith of the school or joined a different religion or denomination.

Curriculum, worship etc.: paragraph 6

Effect

841.     This paragraph disapplies the prohibition on religious discrimination from anything done in relation to acts of worship or other religious observance organised by or on behalf of a school, whether or not it is part of the curriculum.

Background

842.     This exception applies to any school, not just faith schools, and reflects the need to avoid any conflict with the existing legislative framework in respect of religious worship, which generally requires collective worship to be of a broadly Christian nature. While parents can remove their children from collective worship, and Sixth Form pupils may decide to withdraw themselves, schools are under no obligation to provide opportunities for separate worship for the different religions and beliefs represented among their pupils. The exception in paragraph 6 maintains that position. It is designed to replicate the position in the Equality Act 2006.

Examples

  • Under education law, a school must allow Jewish or Hindu parents to withdraw their children from daily assemblies which include an element of worship of a mainly Christian character, but they will not be discriminating unlawfully against those children by not providing alternative assemblies including Jewish or Hindu worship.

  • Schools are free to organise or to participate in ceremonies celebrating any faith, such as Christmas, Diwali, Chanukah or Eid, without being subject to claims of religious discrimination against children of other religions or of none.

Power to amend: paragraph 7

Effect

843.     Paragraph 7 provides a power for a Minister of the Crown to amend or repeal these religious discrimination exceptions.

Background

844.     This power is designed to replicate the effect of provisions in Part 2 of the Equality Act 2006, which first prohibited religious discrimination to schools. It has not yet been used. Its purpose is to enable a Minister of the Crown to review the working of these provisions once they have been in effect for a sufficient period and make any changes which appear to be necessary in the light of that experience, using secondary legislation.

Permitted form of selection: paragraph 8

Effect

845.     This paragraph provides that schools will not be discriminating against disabled children when applying a permitted form of selection that they are using.

Background

846.     This provision is designed to replicate the effect of provisions in the Disability Discrimination Act 1995. Permitted forms of selection are the selective admission arrangements operated by grammar schools, and selection by ability and aptitude in accordance with the School Standards and Framework Act 1998.

Example

  • The parents of a disabled pupil cannot claim disability discrimination against a particular school if that pupil fails to meet any educational entry requirements set by the school.

Schedule 12: Further and higher education exceptions

Part 1: Single-sex institutions

Effect

847.     Part 1 of this Schedule makes exceptions from the prohibition on sex discrimination by further and higher education institutions to allow for the existence of single-sex colleges and to make transitional provisions for single-sex institutions which are turning co-educational.

Background

848.     These provisions are designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

Admission to single-sex institutions: paragraph 1

Effect

849.     This paragraph allows a single-sex institution to refuse to admit members of the opposite sex. An institution is defined as single-sex if it admits students of one sex only. An institution which exceptionally admits students of the opposite sex, or which admits a comparatively small number of opposite-sex students to particular courses or classes only, is still regarded as single-sex. Limiting those students to particular courses or classes is permitted. However, other forms of sex discrimination by the institution against its opposite-sex students would still be unlawful.

Examples

  • A women’s college which admits only female students is not discriminating unlawfully against men.

  • If the college admits a small number of men to make up the numbers on a particular course of study, it is still regarded as a single-sex college. It is not discriminating unlawfully by refusing to admit men to other courses.

  • A women’s college which admits men to certain courses but refuses to let them use the student cafeteria would be discriminating unlawfully against them.

  • Single-sex institutions turning co-educational: paragraphs 2 and 3.

Effect

850.     These paragraphs enable a college which is going through the process of changing from a single-sex to a co-educational institution to apply for a transitional exemption order, to enable it to continue restricting admittance to a single sex until the transition from single-sex is complete.

851.     Paragraph 3 sets out the procedures for applying for a transitional exemption order.

Background

852.     These provisions are designed to replicate the effect of provisions in the Sex Discrimination Act 1975.

Examples

  • If a transitional exemption order is made in accordance with the arrangements in paragraph 3:

    • —     A women’s college which decides to become co-educational by starting to admit a certain number of male undergraduates to the first year of its degree courses will not be discriminating unlawfully by limiting the number of men it admits, or by refusing men access to postgraduate degree courses.

    • —     A college in the process of becoming co-educational must treat its male and female students equally once they have been admitted, since the transitional exemption order relates only to discrimination in relation to admissions.

Part 2: Other exceptions

Occupational requirements: paragraph 4

Effect

853.     This paragraph enables a higher or further education institution to treat a person differently based on a protected characteristic in relation to providing training which would only fit them for work which, under exceptions in Schedule 9, can lawfully be restricted to people of a particular race, sex, religion, sexual orientation or age and for which they would therefore be ineligible.

Background

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

Example

  • A Catholic theological college can refuse to admit a woman to a training course which was designed only to prepare candidates for the Catholic priesthood. However, a Church of England college could not confine training for the priesthood to men since women may also become Anglican priests.

Institutions with a religious ethos: paragraph 5

Effect

855.     This paragraph confers on a Minister of the Crown a power to designate an institution if the Minister is satisfied the institution has a religious ethos. If an institution is designated it may admit students that share the relevant religion or belief in preference to those that do not, but only in relation to admissions to courses which do not constitute vocational training.

Background

856.     This is designed to enable the current position under an exception in the Employment Equality (Religion or Belief) Regulations 2003 to be maintained. Schedule 1B of those Regulations modifies the prohibition on discrimination for a small number of sixth form colleges with a religious ethos. The intention is that this power will be used to designate those colleges.

Benefits dependent on marital status: paragraph 6

Effect

857.     A higher or further education institution which confines any benefit, facility or service - such as access to residential accommodation - to married people and civil partners will not be discriminating because of sexual orientation against people who are unmarried or not in a civil partnership.

Background

858.     This is designed to replicate the effect of a provision in the Employment Equality (Sexual Orientation) Regulations 2003 so far as it relates to higher or further education institutions.

Child care: paragraph 7

Effect

859.     This paragraph provides that a higher or further education institution is permitted to provide, or make arrangements for, or facilitate, care for the children of students which is confined to children of a particular age group. This includes all kinds of assistance with child care including paying for or subsidising it, or enabling parents to spend more time caring for the child.

Background

860.     The Bill will make it unlawful for higher or further education institutions to discriminate on the grounds of the age of a person with whom a student is associated, and not the student’s own age. The exception makes it clear that where child care for students’ children who are aged 16 or under is concerned, it is not unlawful for this to be based on the age of the child.

Example

  • If a college provides a crèche for the pre-school children of students, this will not be unlawful age association discrimination against a student who is the parent of an older child. The college will not have to demonstrate that the provision and the age limits are objectively justified.

 
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Prepared: 19 November 2009