Equality Bill - continued          House of Lords

back to previous text

Clause 158: Positive action: recruitment and promotion

Effect

532.     This clause permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits.

533.     The clause defines recruitment broadly, so that for example offers of partnership or pupillage, or tenancy in barristers’ chambers, are included.

534.     The clause is intended to allow the maximum extent of flexibility to address disadvantage and under-representation where candidates are as good as each other, within the confines of European law.

Background

535.     This clause is new. While current legislation allows employers to undertake a variety of positive action measures, for instance offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the actual point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics.

Examples

  • A police service which employs disproportionately low numbers of people from an ethnic minority background identifies a number of candidates who are as qualified as each other for recruitment and gives preferential selection to a candidate from an ethnic minority background. This would not be unlawful, provided the comparative merits of other candidates were also taken into consideration.

  • An employer offers a job to a woman on the basis that women are under-represented in the company’s workforce when there was a male candidate who was more qualified. This would be unlawful direct discrimination.

PART 12: DISABLED PERSONS: TRANSPORT

Chapter 1: Taxis etc.

Clause 159: Taxi accessibility regulations

Effect

536.     This clause contains a power for the Secretary of State to make regulations specifying the technical standards applying to licensed taxis and imposing requirements on taxi drivers, to enable disabled people to access taxis safely, even when seated in a wheelchair, and be carried in safety and reasonable comfort. It makes it an offence, punishable by a fine of up to £1,000, for a driver of a regulated taxi to fail to comply with the requirements of the regulations.

Background

537.     This clause is designed to replicate the effect of conditions in section 32 of the Disability Discrimination Act 1995.

538.     These conditions do not apply to taxis which are drawn by horses or other animals.

Examples

  • It would be an offence for a taxi driver not to comply with a requirement to have a ramp or other device to enable a disabled person in a wheelchair to access the taxi in safety.

  • It would be an offence for a taxi driver not to comply with a requirement to ensure the correct position of a wheelchair in the taxi so as to ensure the disabled person can travel in safety.

Clause 160: Designated transport facilities

Effect

539.     This clause enables the Secretary of State in England and Wales, or Scottish Ministers in Scotland, to make regulations applying taxi provisions contained in or made under Chapter 1 of Part 12 of the Bill or under section 20(2A) of the Civic Government (Scotland) Act 1982 to private hire vehicles used in the provision of services under a franchise agreement.

Background

540.     This clause is designed to replicate the effect of provisions in section 33 of the Disability Discrimination Act 1995.

541.     Franchise agreements exist between operators of transport facilities (premises which form part of railway stations, airports, ports and bus stations) and operators of private hire cars, in order to provide services to members of the public so that they can travel from, for example, the mainline station to their destination. This clause allows requirements to be placed on vehicles used under a franchise agreement and their drivers to ensure accessibility for disabled people.

Examples

542.     Regulations could require that the vehicles entering, and for use in, an airport to fulfil the terms of a franchise agreement must be accessible to wheelchair users.

Clause 161: Taxi licence conditional on compliance with taxi accessibility regulations

Effect

543.     This clause prevents a licensing authority granting a licence for a taxi to ply for hire unless the vehicle complies with the regulations made under clause 160, so as to ensure that licensed taxis in use are accessible by disabled passengers. The provisions do not apply if a taxi has been licensed in the preceding 28 days, so that existing vehicles can continue to be used even if they do not meet the accessibility requirements.

Background

544.     This clause is designed to replicate the effect of provisions in section 34 of the Disability Discrimination Act 1995.

Examples

  • Someone making an application for a taxi licence will need to ensure the taxi will be accessible by disabled people.

  • A driver renewing the licence for a taxi will not need to show that the vehicle meets the accessibility requirements as long as it was licensed in the 28 days preceding the grant of the new licence.

Clause 162: Exemption from taxi accessibility regulations

Effect

545.     This clause contains a power for the Secretary of State to make regulations allowing a licensing authority to apply for an order exempting it from the requirements of clause 161 if it has undertaken a consultation, published the outcome and taken into account any representations. A licensing authority may only apply for an exemption order if applying clause 161 would reduce the number of taxis in the area to an unacceptable level.

546.     The Secretary of State may grant or refuse such an order but, before deciding whether or not to do so, is required to consult the Disabled Persons Transport Advisory Committee and any other appropriate persons. In granting an exemption order, the Secretary of State may impose certain conditions. Where exemption is given from the full accessibility requirements, taxis may instead be required to be fitted with swivel seats and to conform to any safety conditions when such seats are in use.

Background

547.     This clause is designed to replicate the effect of provisions in section 35 of the Disability Discrimination Act 1995.

Example

  • A particular licensing area can apply for an exemption order if it considers that requiring all taxis to comply with the accessibility requirements would mean that licensed taxi drivers in the area would transfer from being hackney carriage drivers to private hire vehicle drivers, because the cost of purchasing accessible taxis would make their business unprofitable. The Secretary of State can agree to make an exemption order but, in doing so, can require a certain number of accessible taxis to be available in the area.

Clause 163: Passengers in wheelchairs

Effect

548.     This clause places duties on drivers of designated taxis and private hire vehicles to carry a disabled passenger while in a wheelchair; to not make an additional charge; if the passenger chooses to sit in a passenger seat, to carry the passenger’s wheelchair; to carry the passenger in safety and in reasonable comfort; and to provide reasonable assistance to enable the passenger to use the taxi. A taxi or private hire vehicle is designated if it appears on a list maintained by the local licensing authority under clause 165.

549.     A driver of a designated taxi or private hire vehicle who refuses to carry a wheelchair user commits an offence punishable by a fine of up to £1,000.

Background

550.     This clause has its basis in section 36 of the Disability Discrimination Act 1995 but is now modified substantially. Section 36(1A) of the 1995 Act already places duties on drivers of taxis and PHVs when they are operating local bus services. This clause further modifies the original section 36 requirements by extending to PHV drivers operating conventional services the duties that had applied only to taxi drivers; and the duties apply only in relation to licensed taxis and private hire vehicles that have been designated as being wheelchair accessible by the local licensing authority.

Examples

  • A person in a wheelchair hires a wheelchair accessible taxi or private hire vehicle. The driver must help the passenger into and out of the vehicle by using a ramp or lift and helping the passenger onto the lift or up the ramp. The driver must ensure the wheelchair is correctly positioned in the vehicle and secured so that the passenger travels safely and in reasonable comfort.

  • If a passenger in a wheelchair wishes to travel in a passenger seat, the driver must assist the passenger into and out of the vehicle and transport the wheelchair.

  • A driver must load a disabled passenger’s luggage into and out of the taxi.

  • A driver cannot charge a person in a wheelchair more than any other passenger.

Clause 164: Passengers in wheelchairs: exemption certificates

Effect

551.     The Secretary of State may make regulations which allow a licensing authority to exempt a driver from the duties contained in clause 163 if it is satisfied that the driver cannot provide assistance due to a medical or physical condition.

552.     The exemption certificate must be displayed in the vehicle.

Background

553.     This clause has its basis in section 36 of the Disability Discrimination Act 1995 but is now modified substantially (as explained in paragraph 549) and the exemption certificate provision now stands in a separate clause. An exemption certificate needs to be exhibited on a taxi and must be carried in the private hire vehicle. The driver of a private hire vehicle must show the certificate if requested by a disabled passenger or person accompanying a disabled passenger.

Example

  • A driver is not required to provide physical assistance to help a passenger in a wheelchair into and out of a vehicle if he is medically unfit to do so.

Clause 165: Lists of wheelchair-accessible vehicles

Effect

554.     This clause permits a licensing authority to maintain a list of wheelchair-accessible taxis and private hire vehicles that serve an area. A licensing authority in England and Wales can designate vehicles for both conventional work and for occasions when these vehicles are providing local bus services. Licensing authorities in Scotland can only designate those taxis and private hire vehicles in its area that provide local bus services. The duties contained in clause 163 will apply to drivers of taxis or private hire vehicles that appear on the list of wheelchair-accessible vehicles.

555.     The clause permits the Secretary of State to issue guidance to licensing authorities and the licensing authority must have regard to any guidance issued.

Background

556.     This clause has its basis in section 36 of the Disability Discrimination Act 1995, in terms of identifying the vehicles to which the duties to assist apply, but is now modified substantially (as explained in paragraph 549) It is designed to enable licensing authorities to designate the taxis and private hire vehicles in their area that are wheelchair-accessible.

Example

  • A licensing authority will maintain a list of taxis and private hire vehicles that have been designated as being wheelchair accessible in its area.

  • The driver of a vehicle that is included on the list will provide assistance to passengers in wheelchairs and will not charge them an additional fare.

Clause 166: Assistance dogs in taxis

Effect

557.     This clause places duties on drivers of taxis to transport a disabled person’s assistance dog, for example, a blind person’s guide dog, and allow it to stay with the passenger without making any additional charge.

558.     A driver of a taxi who refuses to carry an assistance dog commits an offence that is punishable by a fine of up to £1,000.

Background

559.     This clause is designed to replicate the main provision contained in Section 37 of the Disability Discrimination Act 1995.

Examples

  • A person with an assistance dog hails a taxi. The driver must not refuse to transport the assistance dog and must let it accompany the passenger in the taxi.

Clause 167: Assistance dogs in taxis: exemption certificates

Effect

560.     This clause permits a licensing authority to exempt a driver of a taxi from the duties contained in clause 166 if it is satisfied that the driver cannot carry an assistance dog on medical grounds, or that the vehicle is not suitable for the carriage of assistance dogs.

561.     The exemption certificate must be displayed on the taxi.

Background

562.     This clause is designed to replicate the exemption provision that was contained in section 37 of the Disability Discrimination Act 1995. However the definition of “licensing authority” in relation to London has been amended to mean Transport for London as it is this body that currently exercises functions relating to taxi licensing in London. The provision picks up a consequential amendment to the DDA that appears to have been missed at the time of the Greater London Authority Act 1999.

Example

  • A driver who has a medically certified allergy to dogs is not required to carry an assistance dog, as long as she displays an exemption certificate in her taxi.

Clause 168: Assistance dogs in private hire vehicles

Effect

563.     This clause places duties on operators and drivers of private hire vehicles to transport a disabled person’s assistance dog and allow it to stay with the passenger without making any additional charge.

564.     An operator or driver of a private hire vehicle who refuses to carry an assistance dog commits an offence that is punishable by a fine of up to £1,000.

Background

565.     This clause is designed to replicate the main provision contained in section 37A of the Disability Discrimination Act 1995.

Examples

  • A driver of a private hire vehicle cannot impose an additional charge for carrying an assistance dog.

  • An operator of a fleet of private hire vehicles accepts a booking from a passenger with an assistance dog. The driver cannot refuse to carry the assistance dog.

Clause 169: Assistance dogs in private hire vehicles: exemption certificates

Effect

566.     This clause permits a licensing authority to exempt a driver of a private hire vehicle from the duties contained in clause 168 if it is satisfied that the driver cannot carry an assistance dog because of a medical condition, or that the vehicle is not suitable for the carriage of assistance dogs.

567.     The exemption certificate must be displayed in the private hire vehicle.

Background

568.     This clause is designed to replicate the exemption provision that was contained in section 37A of the Disability Discrimination Act 1995.

Example

  • A driver is not required to carry an assistance dog if he has a medically certified allergy to dogs.

Clause 170: Appeals

Effect

569.     In England and Wales, if a taxi or a private hire vehicle driver is refused a certificate exempting him or her from the requirements to assist disabled passengers in wheelchairs or to carry assistance dogs, this clause gives a right of appeal to a magistrates’ court, within 28 days of being refused.

570.     In Scotland, if a taxi or private hire vehicle driver is refused a certificate exempting him or her from the requirements to assist disabled passengers in wheelchairs, this clause gives a right to appeal to the sheriff, within 28 days of being refused.

571.     The owner of a taxi or private hire vehicle may appeal, to the magistrates’ court in England and Wales, or the sheriff in Scotland, against a licensing authority’s decision to include his or her vehicle on a designated list of wheelchair accessible vehicles held by the licensing authority under clause 165.

Background

572.     This clause is designed to replicate the provisions of section 38 of the Disability Discrimination Act 1995. However, clause 170 now extends to drivers of designated taxis and private hire vehicles when not providing a local bus service (i.e. when providing a conventional service). This clause also reflects the change made in clause 165 for the listing of such vehicles.

Examples

  • A taxi driver applies for a certificate exempting him from the requirement to assist disabled passengers in wheelchairs because he has a bad back. His application is refused by the licensing authority but the driver believes insufficient consideration was given to the medical information supporting his application, so he lodges an appeal within 28 days of the decision. The appeal is successful and the court directs the licensing authority to issue an exemption certificate to the driver.

  • A licensing authority lists a taxi or private hire vehicle as being accessible for passengers in wheelchairs, meaning the driver is required to assist disabled passengers in wheelchairs. The owner of the vehicle, who considers that it is not accessible, can appeal the decision to be listed.

Clause 171: Interpretation

Effect

573.     This clause explains the meaning of the terms, “accessibility requirements”, “assistance dog”, “taxi” and “taxi accessibility regulations”.

Chapter 2: Public service vehicles

Clause 172: PSV accessibility regulations

Effect

574.     This clause enables the Secretary of State to make public service vehicle accessibility regulations specifying the technical standards applying to buses and coaches, to provide greater accessibility to disabled passengers including when seated in a wheelchair. The requirements can relate to the construction, use and maintenance of the vehicle, to the design and carriage of equipment, and to wheelchair restraints and wheelchair position.

Background

575.     This clause replicates the provisions of section 40 of the Disability Discrimination Act 1995.

Example

  • Buses and coaches must meet certain technical standards in respect of equipment and design to ensure accessibility by disabled passengers. If accessibility features, such as hand rails or other aids, were present when the vehicle was approved but have subsequently been removed, the bus must not be used on the road.

Clause 173: Offence of contravening PSV accessibility regulations

Effect

576.     This clause makes it an offence to fail to comply with the requirements of the regulations or to use or allow to be used on the road a public service vehicle which does not meet the requirements of the regulations. If an offence is found to have been committed by or with the consent of a responsible person, such as a director, manager or company secretary, that individual, as well as the company, is guilty of the offence.

577.     The offence is punishable by a fine of up to £2,500.

Background

578.     This clause replicates the offence provisions of section 40 of the Disability Discrimination Act 1995.

Example

  • A bus has an accessibility feature removed and is subsequently used on a registered service. By using, or permitting the vehicle to be used in this condition, an offence is committed and may lead to the driver and the operator being convicted of the offence and a fine of up to £2,500 being imposed.

Clause 174: Accessibility certificates

Effect

579.     This clause requires a regulated public service vehicle to have an accessibility certificate to demonstrate that it meets the requirements of the public service vehicle accessibility regulations (see clause 172), or an approval certificate (see clause 175), before it can be used on a road. It also allows the Secretary of State to make regulations relating to applications and the issue (or copies) of accessibility certificates and providing for vehicle examinations.

Background

580.     This clause replicates the provisions contained in section 41 of the Disability Discrimination Act 1995.

Example

  • A bus must have an accessibility certificate showing that it conforms to requirements about accessibility features, for example, ramps, handrails and wheelchair spaces. The certificate shows that the bus meets the minimum acceptable standard to enable disabled passengers to get on and off it and be carried on it in reasonable safety and comfort.

Clause 175: Approval certificates

Effect

581.     This clause allows the Secretary of State to approve a public service vehicle as a “type vehicle” if the relevant technical requirements are met, and the issue of an approval certificate if a particular vehicle conforms with a “type vehicle”. This allows a design of vehicle to be approved as meeting the technical and accessibility requirements. It also contains a power for the Secretary of State to make regulations relating to applications and the issue (or copies) of approval certificates and providing for vehicle examinations.

582.     The Secretary of State can withdraw approval for a “type vehicle” at any time. When this happens, no further approval certificates may be issued. The certificates issued prior to withdrawal remain valid.

Background

583.     This clause replicates the provisions contained in section 42 of the Disability Discrimination Act 1995.

Example

  • A particular bus manufacturer’s chassis in combination with a body is approved as a “type vehicle”, and approval certificates are issued in respect of buses conforming to this design. Modifications are subsequently made to the “type vehicle” which mean that it no longer meets the technical requirements, so its approval as a “type vehicle” is withdrawn and no approval certificates will be issued in respect of buses conforming to the modified design.

Clause 176: Special authorisations

Effect

584.     This clause contains a power for the Secretary of State to authorise the use of a public service vehicle in certain circumstances where such a vehicle may not meet the requirements of regulations under clause 172. It also allows restrictions or conditions to be placed on the use of such vehicles.

Background

585.     This clause replicates the provisions contained in Section 43 of the Disability Discrimination Act 1995.

 
previous Section Bill Home page continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries ordering index

© Parliamentary copyright 2009
Prepared: 4 December 2009