Equality Bill - continued          House of Lords

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Background

697.     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

698.     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

699.     This is a new exception.

700.     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

701.     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

702.     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

703.     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.

704.     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

705.     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

Services arranged by the employer: paragraph 20

Effect

706.     Paragraph 20 provides an exception to clause 29 (Provision of services, etc) for group insurance schemes and group personal pensions (“group schemes”). As group schemes are offered to employees as part of the employment relationship:

  • the employer is responsible for ensuring that the provision of benefits under group schemes complies with the requirements of Part 5 (Work); and

  • the insurer or pension provider is not responsible for ensuring that the provision of benefits complies with the requirements of Part 3 (Services and public functions)

Background

707.     Group policies and schemes are arrangements between an employer and an insurer for the benefit of the employees, their partners and their dependants. They are entered into not on the basis of the individual characteristics of each employee but on the basis of the employer’s business and the profile of the employees. Employees can sign up to the benefits under such policies on standard terms that are the same for all employees. This is a new provision; but one that reflects current practice.

Example

  • An employer enters into a contract with an insurer for the provision of health insurance to employees. As the health insurance is part of the package of benefits provided by the employer to the employee, the employer must ensure that the provision complies with Part 5. So, if benefits under the health insurance policy differ between men and women, the employer may have to justify the difference by reference to paragraph 20 of Schedule 9 (Insurance contracts etc).

Disability: paragraph 21

Effect

708.     Paragraph 21 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

709.     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 22

710.     Paragraph 22 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.

711.     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 6th 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 6th April 2008 policies.

712.     The exception in sub-paragraph (3) covers contracts of insurance or for related financial services entered into on or after 6th 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 22nd 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.

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

Background

714.     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.

Example

  • 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 23

Effect

715.     Paragraph 23 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. It is expected that, as part of the commencement process, the effect of the existing law in relation to existing policies within this paragraph will be preserved until renewal or review.

Background

716.     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 24

Effect

717.     Paragraph 24 contains exceptions to the general prohibition of sex discrimination which allow the provision of separate services for men and women

718.     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.

719.     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

720.     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 25

Effect

721.     Paragraph 25 contains exceptions to the general prohibition of sex discrimination to allow the provision of single-sex services.

722.     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.

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

724.     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

725.     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

726.     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.

Gender reassignment: paragraph 26

Effect

727.     Paragraph 26 contains an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate- and single-sex services. Such treatment by a provider has to be objectively justified.

Background

728.     This paragraph replaces a similar provision in the Sex Discrimination Act 1975.

Example

  • A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

Services relating to religion: paragraph 27

Effect

729.     Paragraph 27 contains an exception to the general prohibition of sex discrimination to allow ministers of religion to provide separate and single-sex services.

730.     The minister can provide such services so long as this is done for religious purposes, at a place occupied or used for those purposes and it is either necessary either to comply with the tenets of the religion or for the purpose of avoiding conflict with the strongly held religious views of a significant number of the religion’s followers. This does not apply to acts of worship (which are not themselves “services” within the meaning of the Bill so no exception is required) but to ancillary issues such as separate seating of men and women.

Background

731.     This paragraph replaces a similar provision in the Sex Discrimination Act 1975. The requirement regarding avoiding conflict with the religion’s followers has been altered in order to give consistency within the Bill and some explanatory provisions have been added for the same reason.

Example

  • A synagogue has separate seating for men and women at a reception following a religious service.

  • Services generally provided only for persons who share a protected characteristic: paragraph 28

Effect

732.     Paragraph 28 provides that a service provider does not breach the requirement in clause 29 not to discriminate in the provision of a service if he or she supplies the service in such a way that it is commonly only used by people with a particular protected characteristic (for example, women or people of Afro-Caribbean descent) and he or she continues to provide that service in that way. If it is impracticable to provide the service to someone who does not share that particular characteristic, a service provider can refuse to provide the service to that person.

Background

733.     This is designed to replicate the effect of provisions currently contained in the Sex Discrimination Act 1975 and the Equality Act 2006, and extends the clarification they provide across all other protected characteristics for the first time.

Examples

  • A hairdresser who provides Afro-Caribbean hairdressing services would not be required to provide European hair dressing services as well. However, if a white English person wanted his hair braided and there was no technical difficulty to prevent that, it would be unlawful for the hairdresser to refuse to provide her services to him.

  • A butcher who sells halal meat is not required also to sell non-halal meat or kosher meat. However, if a non-Muslim customer wanted to purchase the meat that was on offer, he could not refuse to sell it to her.

Part 7: Transport

Application to disability: paragraph 29

Effect

734.     Paragraph 29 applies the exceptions listed in paragraphs 30 and 31 in relation to disability, thereby stipulating the extent to which providers of transport services are bound by the disability provisions of the Bill.

Background

735.     These provisions replicate the effect of existing provisions in the Disability Discrimination Act 1995.

Transport by air: paragraph 30

Effect

736.     Paragraph 30(1) provides an exception to the prohibition against discrimination, so far as it relates to disability, in respect of the provision of services in connection with air transport.

737.     Paragraph 30(2) ensures that there is no duplication where there would otherwise be an overlap between the disability provisions of the Bill and Regulation (EC) No1107/2006 of the European Parliament and of the Council of 5th July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (“EC Regulation 1107/2006”).

Background

738.     These provisions replicate the effect of existing provisions in the Disability Discrimination Act 1995.

Examples

  • An airline is required to make reasonable adjustments to its booking services to ensure that they are accessible to disabled people. It is not required to make any structural adjustments to the cabin environment inside an aircraft by reason of the derogation in Article 4(1)(a) of EC Regulation 1107/2006.

  • An airport owner charges a disabled person for wheelchair assistance to board an aircraft. This would be a breach of EC Regulation 1107/2006, so clause 29 of the Bill would not apply. However, if the same airport owner fails to make adjustments to allow disabled people to access car parks at the airport, this would fall within scope of the Bill.

Transport by land: paragraph 31

Effect

739.     Paragraph 31 provides an exception from clause 29 for all services of transporting people by land, except those listed. The definitions of the vehicles listed are contained in Paragraph 4 of Schedule 2.

Background

740.     This paragraph replicates the effect of existing provisions in the Disability Discrimination Act 1995.

Example

  • A train operating company is required to provide a reasonable alternative when a disabled person is unable to access the buffet car due to their disability.

Part 8: Supplementary

Power to amend: paragraph 32

Effect

741.     Paragraph 32 contains a power for a Minister of the Crown to vary, remove or add to the exceptions in this Schedule relating to public functions in respect of disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It allows a Minister of the Crown also to add, vary or remove the exceptions that relate to the provision of services but only in relation to disability, religion or belief and sexual orientation.

742.     In relation to transport by air, a Minister of the Crown can also vary, remove or add exceptions in relation to the provision of services and the exercise of public functions for disability only. For these purposes, it does not matter where the transport in fact takes place.

743.     The Minister must consult the Equality and Human Rights Commission before exercising the power under this paragraph.

Background

744.     This reflects the substance of powers contained in current legislation.

Schedule 4: Premises: reasonable adjustments

Effect

745.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to a controller of “let” premises or of premises “to let” and to the commonhold association where a disabled tenant (or prospective tenant) or unitholder in commonhold land or the disabled person legally occupying the property is placed at a substantial disadvantage, so that the disabled person can enjoy the premises or make use of them. It stipulates that the duty does not require the removal or alteration of a physical feature, and makes clear what are not “physical features” for these purposes. The duty only applies if a request for an adjustment is made by or on behalf of a disabled person.

746.     This Schedule also explains how the duty to make reasonable adjustments in clause 20 applies in relation to “common parts”, for example an entrance hall in a block of flats. These provisions relate specifically to physical features and set out the process that must be followed by the person responsible for the common parts (for example in England and Wales either a landlord or, in the case of commonhold land, the commonhold association) if a disabled tenant or someone on their behalf requests an adjustment. This includes a consultation process with others affected which must be carried out within a reasonable period of the request being made. If the responsible person decides to make an adjustment to avoid the disadvantage to the disabled person, a written agreement must be entered into between them setting out their rights and responsibilities.

747.     The Schedule also makes it unlawful for a controller or responsible person to victimise a disabled tenant because costs have been incurred in making a reasonable adjustment.

Background

748.     This Schedule partly replaces similar provisions in the Disability Discrimination Act 1995. However, the Bill introduces a new requirement for disability related alterations to the physical features of the common parts of let residential premises or premises owned on a commonhold basis.

Examples

  • A landlord has a normal practice of notifying all tenants of any rent arrears in writing with a follow-up visit if the arrears are not reduced. A disabled person explains to the landlord that he cannot read standard English so would not be aware that he was in arrears. He asks to be notified of any arrears in person or by telephone. The landlord arranges to visit or telephone the learning disabled person to explain when he has any arrears of rent. This personal contact may be a reasonable adjustment for the landlord to make. .

  • A landlord is asked by a disabled tenant to install a ramp to give her easier access to the communal entrance door. The landlord must consult all people he thinks would be affected by the ramp and, if he believes that it is reasonable to provide it, he must enter into a written agreement with the disabled person setting out matters such as responsibility for payment for the ramp. The landlord can insist the tenant pays for the cost of making the alteration.

 
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Prepared: 4 December 2009