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Background

924.     This paragraph replicates the provisions of section 47H of the Disability Discrimination Act 1995 as inserted by the Disability Discrimination Act 2005 but not yet in force.

Penalties: amount, due date and recovery: paragraph 9

Effect

925.     This paragraph makes provision in relation to the amount, due date and recovery of penalties imposed under paragraphs 1 and 5 to 8. It stipulates that the maximum penalty cannot exceed the amount prescribed in regulations, or 10 per cent of the turnover of the rail vehicle operator subject to the penalty, whichever is the lesser amount. “Turnover” must be determined in accordance with provisions set out in regulations and the Secretary of State is able to take court proceedings to recover any penalty payable to him. All penalties must be paid into the Consolidated Fund.

Background

926.     This paragraph replicates section 47J (1) to (7) of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force. The other aspects of section 47 are replicated at paragraph 10.

Penalties: code of practice: paragraph 10

Effect

927.     This paragraph requires the Secretary of State to issue a code of practice to set out matters that must be considered in determining the level of a penalty. The Secretary of State is required to take account of the code when imposing a penalty under this Schedule or in considering any objections received to the imposition of a penalty. So is a court in considering an appeal against a penalty under paragraph 12.

928.     Before issuing either the first or a revised code of practice, the Secretary of State must lay a draft before Parliament, and may bring it into operation by order.

Background

929.     This paragraph replicates the remaining provisions of section 47J of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force which are not replicated in paragraph 9.

Penalties: procedure: paragraph 11

Effect

930.     This paragraph sets out the procedure for the imposition of penalties under this Schedule. In particular it specifies the information which the Secretary of State must provide when notifying a rail vehicle operator that they are liable to a penalty, and outlines the operator’s right to object to the imposition, or amount of, a penalty. Should an objection be received, the Secretary of State is under an obligation to consider the objection and take appropriate action.

Background

931.     This paragraph replicates the provisions of section 47K of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Penalties: appeals: paragraph 12

Effect

932.     This paragraph sets out the right of an operator, on whom a penalty has been imposed, to appeal to a court on the grounds that either they are not liable to a penalty, or that the amount is too high. An appeal under this section is a re-hearing of the Secretary of State’s original decision to impose a penalty, and may be brought whether or not the operator has given a notice of objection (under paragraph 11), or the Secretary of State has already reduced a penalty.

Background

933.     This paragraph replicates the provisions of section 47L of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Forgery etc.: paragraph 13

Effect

934.     This paragraph makes it a criminal offence for a person, with intent to deceive, to forge, alter, use, or lend a compliance certificate, to allow one to be used by another person, to make or have possession of a document which closely resembles one, or to knowingly make a false statement for the purpose of obtaining one.

935.     It also makes it a criminal offence for a person to impersonate an inspector authorised by the Secretary of State under paragraph 7.

Background

936.     This paragraph replicates elements of the provisions of section 49 of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Interpretation: paragraph 14

Effect

937.     This paragraph defines what is meant by the terms “compliance assessment”, “compliance certificate” and “operator” in relation to this Schedule.

938.     Under sub-paragraph (2), if a rail vehicle to which this Schedule applies is the subject of an exemption order, issued under clause 178, then a reference in this Schedule to a rail vehicle accessibility requirement will not include a requirement from which that vehicle is exempt.

Background

939.     This paragraph replicates elements of the provisions of section 47M of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Schedule 21: Reasonable adjustments: supplementary

Effect

940.      The provisions in this Schedule apply to earlier Schedules in the Bill dealing with reasonable adjustments where a person providing services or carrying out public functions, an employer, an education provider or an association is required to consider reasonable adjustments to premises which it rents and would require landlord consent to do so. It sets out what steps it is reasonable for a person to take in discharging a duty to make reasonable adjustments in a case where a binding agreement requires that consent must be obtained from a third party before that person may proceed to make the adjustment to let premises or the common parts of let premises.

941.     Where a person wishes to make an adjustment in order to fulfil a duty to make reasonable adjustments but is unable to do so, the Schedule enables the adjustment to be made by deeming the tenancy to include certain provisions. For example the tenancy may have effect as if a tenant is able to make alterations with the consent of the landlord.

942.     Where a landlord has refused consent to an alteration or gives consent subject to a condition, the person requesting the consent (or a disabled person who has an interest in the alteration being made) can refer the refusal (or the conditional consent) to a county or sheriff court.

943.     The Schedule also provides for a landlord to be joined as a party to proceedings before an employment tribunal, county or sheriff court where a disabled person is bringing an action under the reasonable adjustment duty.

944.     The Schedule provides a power to make regulations about matters such as when a landlord is taken to have refused consent, when such refusal is unreasonable and when it is reasonable. Words and phrases used in the Schedule are interpreted consistently with the parts of the Bill to which it cross-refers.

Background

945.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995. It also applies in relation to the new duty to make alterations to the physical features of common parts of let and commonhold residential premises in England and Wales and tenements in Scotland.

Examples

  • An insurance company works from a rented two storey building and has plans to install a stair lift to make the building more accessible to employees with mobility impairments. The terms of the lease preclude alterations to the staircase. The company writes to the landlord for permission to make the alteration. The landlord consults the superior landlord who agrees to waive this condition of the lease thereby allowing the installation of the chair lift to proceed. However, as a condition of consent, the landlord requires that the chair lift is removed on surrender of the lease.

  • A disabled tenant asks to have automated doors put in at the entrance of her block of flats. Her landlord would like to agree but is unable to do so as he is a tenant of a superior landlord who does not agree to the alteration. The tenant’s remedy is to bring an action against her landlord in the county court where she can ask that the superior landlord is brought in as an additional party to the case. The court can order the alteration to be made and order the superior landlord to pay compensation if it finds he has acted unreasonably in refusing his consent.

Schedule 22: Statutory provisions

Statutory authority: paragraph 1

Effect

946.     Paragraph 1 of this Schedule provides exceptions from several Parts of the Bill, in relation to the protected characteristics of age, disability, religion or belief, sex and sexual orientation, for things done in accordance with what is, or may in future be, required because of some other law.

Background

947.     Paragraph 1 replaces the separate exceptions for statutory authority in current legislation. However, the exception in section 41(1) of the Race Relations Act 1976 as amended, which excuses certain race discrimination done under statutory authority in areas with which European law is not concerned, is being removed but not being replaced.

Examples

  • A shopkeeper can lawfully refuse to sell alcohol to someone under the age of 18.

  • An employer can lawfully dismiss a disabled employee if health and safety regulations leave him with no other choice.

  • An employer can lawfully refuse to employ someone to drive a large goods vehicle who is not old enough to hold a LGV licence.

Protection of women: paragraph 2

Effect

948.     This paragraph allows differential treatment based on sex or pregnancy and maternity at work which is required to comply with laws protecting women who are pregnant, who have recently given birth or against risks specific to women.

Background

949.     The paragraph replaces separate exceptions for the protection of women in the Sex Discrimination Act 1975 and in the Employment Act 1989.

Examples

  • A care home cannot lawfully dismiss, but can lawfully suspend, a night-shift worker because she is pregnant and her GP has certified that she must not work nights.

  • It may be lawful for a road haulier to refuse to allow a woman lorry driver to transport chemicals that could harm women of child-bearing age.

Educational appointments etc: religious belief: paragraphs 3 and 4

Effect

950.     Paragraph 3 provides an exception from the provisions on sex or religious discrimination for certain posts in schools or institutions of further or higher education where their governing instrument requires the head teacher or principal to be of a particular religious order, or that a particular academic position must be held by a woman, or where the legislation or instrument which establishes a professorship requires the holder to be an ordained priest. In the case of academic positions reserved to women, the exception only applies where the governing instrument was made before 16 January 1990.

951.     There is an order-making power conferred on a Minister of the Crown to withdraw the exception either in relation to a particular institution or a class of institutions.

952.     Paragraph 4 provides that it is not unlawful discrimination for schools which have a religious character or ethos (often referred to as faith schools) to do certain things which are permitted by the School Standards and Framework Act 1998. This includes:

  • allowing teachers who have been appointed to give religious education to be dismissed if they fail to give it competently;

  • allowing a faith school to take account of religious considerations when appointing a head teacher; and

  • allowing a voluntary aided school or an independent school to take account of religious considerations in employment matters.

Background

953.     Paragraph 3 is designed to replicate the effect of provisions in section 5 of the Employment Act 1989.

954.     Universities restrict Canon Professorships to certain religions since such posts can only be held by ordained Ministers.

955.     Paragraph 4 is designed to replicate the effect of regulation 39 of the Employment Equality (Religion or Belief) Regulations 2003.

Examples

  • Voluntary controlled and foundation schools with a religious ethos may appoint a head teacher on the basis of his ability and fitness to preserve and develop the religious character of the school.

  • Voluntary Aided schools with a religious ethos can restrict employment of teachers to applicants that share the same faith. For example most Catholic schools may require that applicants to teaching positions be of the Catholic faith.

Crown employment etc.: paragraph 5

Effect

956.     Paragraph 5 allows restrictions on the employment of foreign nationals in the civil, diplomatic, armed or security and intelligence services and by certain public bodies. It also allows restrictions on foreign nationals holding public offices.

Background

957.     The paragraph replaces similar provisions in the Race Relations Act 1976.

Examples

  • Posts in the security and intelligence services are automatically reserved for UK nationals.

  • People who are neither British, Commonwealth or Irish citizens nor British protected persons are generally prohibited from serving in the armed forces, with the notable exception of Gurkhas.

Schedule 23: General exceptions

Acts authorised by statute or the executive: paragraph 1

Effect

958.     This paragraph allows direct nationality discrimination and indirect race discrimination on the basis of residency requirements where the discrimination is required by law, Ministerial arrangements or Ministerial conditions.

Background

959.     The paragraph replaces a similar exception in the Race Relations Act 1976.

Examples

  • The points-based system which replaced the former work permit arrangements can discriminate on the basis of nationality in determining whether migrants from outside the European Economic Area and Switzerland should be given permission to work in the United Kingdom.

  • The NHS can charge some people who are not ordinarily resident in the United Kingdom for hospital treatment they receive here.

  • Overseas students at universities in England and Wales can be required to pay higher tuition fees than local students (there are no tuition fees in Scotland).

Organisations relating to religion or belief: paragraph 2

Effect

960.     Paragraph 2 provides an exception for religious or belief organisations with regard to the provisions in the Bill relating to services and public functions, premises and associations.

961.     The types of organisation that can use this exception are those that exist to: practice, advance or teach a religion or belief; allow people of a religion or belief to participate in any activity or receive any benefit related to that religion or belief; promote good relations between people of different religions or beliefs. Organisations whose main purpose is commercial cannot use this exception.

962.     The exception allows an organisation (or a person acting on its behalf) to impose restrictions on membership of the organisation; participation in its activities; the use of any goods, facilities or services that it provides; and the use of its premises. However, any restriction can only be imposed by reference to a person’s religion or belief or their sexual orientation.

963.     In relation to religion or belief, the exception can only apply where a restriction is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion or belief that the organisation represents.

964.     In relation to sexual orientation, the exception can only apply where it is necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents. However, if an organisation contracts with a public body to carry out an activity on that body’s behalf then it cannot discriminate because of sexual orientation in relation to that activity.

965.     The exception also enables ministers of religion to restrict participation in the activities that they carry out in the performance of their functions as a minister and access to any goods, facilities or services they provide in the course of performing those functions.

Background

966.     This paragraph replicates the effect of similar provisions in Part 2 of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007.

Examples

  • A Catholic seminary can restrict places for students to those of the Catholic faith. This would not be unlawful religion or belief discrimination.

  • A Church refuses to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held religious convictions of a significant number of its followers. This would not be unlawful sexual orientation discrimination.

  • A religious organisation which has a contract with a local authority to provide meals to elderly and other vulnerable people within the community on behalf of the local authority cannot discriminate because of sexual orientation.

Communal accommodation: paragraph 3

Effect

967.     This paragraph provides an exception to the general prohibition of sex and gender reassignment discrimination. It allows communal accommodation to be restricted to one sex only, as long as the accommodation is managed as fairly as possible for both men and women. It sets out factors which must be considered when restricting communal accommodation to one sex only, and provides that discriminatory treatment of transsexual people must be objectively justified.

968.     Communal accommodation is defined as residential accommodation which includes shared sleeping accommodation which should only be used by members of one sex for privacy reasons.

969.     Where such accommodation is refused in the field of work, or a benefit linked to such accommodation is refused, alternative arrangements must be made where reasonable so as to compensate the person concerned.

Background

970.     This paragraph replaces similar provisions in the Sex Discrimination Act 1975. The scope of the exception has been extended from employment, education and services to all fields.

Examples

  • A hostel only accepts male guests. It is not unlawful for it to refuse to accept female guests because the majority of the bedrooms are shared and there is only one communal bathroom.

  • At a worksite the only available sleeping accommodation is communal accommodation occupied by men. A woman employee who wishes to attend a training course at the worksite is refused permission because of the men-only accommodation. Her employer must make alternative arrangements to compensate her where reasonable, for example, by arranging alternative accommodation or an alternative course.

Training provided to non-EEA residents, etc: paragraph 4

Effect

971.     Paragraph 4 allows less favourable treatment because of a person’s nationality in relation to training and associated benefits that are intended for people who do not live in an EEA state, as long as the training provider believes that the person will not subsequently use the skills obtained in Great Britain. This means that an EEA resident cannot claim to have been discriminated against in relation to this type of activity.

972.     Employment or contract work can be covered by this exception where its sole or main purpose is the provision of training in skills. Special provision is made in relation to defence training to reflect current arrangements to help provide other nations with the skills to assist the United Kingdom in addressing global conflict and supporting the United Kingdom on multi-national operations.

Background

973.     The main purpose of this provision is to enable people from developing countries to acquire vital skills which may not be available in their country of residence. It replaces similar provisions in the Race Relations Act 1976. The general rule on non-residence has been extended from Great Britain to include all EEA states, except in relation to defence training which is provided to forces from other EEA states as well as those outside the EEA.

Example

  • It is not unlawful for a company specialising in sustainable irrigation that offers a training scheme in Great Britain for people who live in Mozambique, who then return home to put the skills learned into practice, to refuse to offer the same training to someone who lives in Great Britain.

Schedule 24: Harmonisation: exceptions

Effect

974.     This Schedule sets out the provisions of the Bill to which the power in clause 193 does not apply. These are largely provisions where all the equality provisions are clearly governed by Community law or where power exists under other legislation to deal with any anomalies that may otherwise arise. Accordingly it will not be possible to amend these provisions using the power in clause 193 to bring them into line, where needed, with changes in European law.

Schedule 25: Information society services

Effect

975.     This Schedule ensures that the provisions of the Bill do not conflict with the requirements of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 (“the E-Commerce Directive”). It provides that where an information society service provider (“the provider”) is established in Great Britain, the provisions of the Bill apply to anything done by the provider in providing the information society service in another EEA state. By contrast, where the provider is established in an EEA state other than the United Kingdom, then the Bill does not apply to anything done by the provider in providing the information society service, even within Great Britain. Various exceptions to the provisions of the Bill are provided in respect of intermediary internet service providers who carry out activities essential for the operation of the internet.

Background

976.     These provisions are new. They are necessary to ensure the United Kingdom correctly transposes the E-Commerce Directive.

Examples

  • An on-line holiday company established in Great Britain refuses to take bookings for shared accommodation from same-sex couples. In this instance a case of direct sexual orientation discrimination could be brought in the British courts regardless of whether the complainant was in the United Kingdom or another EEA member state.

  • An on-line retailer, which provides tickets to major sporting events, provides discounts to large groups of men but not women when booking hospitality packages for the forthcoming football world cup. The on-line retailer is established in Germany so in this instance a case of direct sex discrimination would have to be brought in the German courts regardless of whether the complainant was in the United Kingdom or another EEA member state.

Schedule 26: Amendments

Effect

977.     This Schedule sets out a number of amendments to the following acts: the Local Government Act 1988, the Employment Act 1989 and the Equality Act 2006. These amendments are necessary to ensure that these Acts refer accurately to the new provisions contained in the Bill and work properly with those new provisions. For example, where a new term or a new definition is used in the Bill and an existing Act refers to the term in current legislation which is being repealed, the existing Act needs to be amended to refer to the new term or definition.

Local Government Act 1988: paragraphs 1 to 4

Effect

978.     This paragraph amends Part 2 of the Local Government Act 1988 (“the 1988 Act”) so as to provide that the public bodies to which that Part applies may exercise a function by reference to a non-commercial matter to the extent that the authorities consider it necessary or expedient to do so in order to comply with the equality duty.

 
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Prepared: 19 November 2009