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Schedule 5: Premises: exceptions

Effect

749.     This Schedule sets out limited exceptions to the prohibitions on discrimination and harassment contained in the premises provisions in Part 4 of the Bill.

750.     The first exception applies where a person who owns and lives in a property disposes of all or part of it privately (for example by selling, letting or subletting) without using the services of an estate agent, or publishing an advertisement.

751.     This exception does not apply to race discrimination in disposing of premises. It only applies to discrimination in relation to permission to dispose of premises where it is based on religion or belief or sexual orientation.

752.     This exception also exempts a controller of leasehold premises (as defined in clause 36) from the duty to make reasonable adjustments provided that:

  • where the premises have been let, the premises are (or have been) the controller’s main or only home and he has not used the services of a manager since letting the premises (paragraph 2(1));

  • where the premises are to let, they are the controller’s main or only home and he has not used the service of an estate agent for letting purposes (paragraph 2(3)).

753.     The second exception applies to disposal, management or occupation of part of small premises. It applies where a person engaging in the conduct in question, or a relative of that person, lives in another part of the premises and the premises include facilities shared with other people who are not part of their household.

754.     This exception does not apply to race discrimination when disposing of or giving permission for the disposal of premises, or in the management of premises.

755.     The small premises exception also exempts a controller of premises or a person responsible in relation to common parts (as defined in clause 36) from the duty to make reasonable adjustments where the premises are small, where that person or a relative of that person lives in one part of the premises and residents who are not members of that person’s household live in another part of the premises. The definitions of “small premises” and “relative” in paragraph 3 apply.

756.     Paragraph 5 contains a power for a Minister of the Crown to amend or repeal the small premises exception.

Background

757.     This Schedule replaces similar provisions in current legislation.

Examples

  • A homeowner makes it known that she is preparing to sell her flat privately. A work colleague expresses an interest in buying it but she refuses to sell it to him because he is black. That refusal would not be covered by this exception and so would be unlawful.

  • A homeowner makes it known socially that he wants to sell his house privately. Various prospective buyers come forward and the homeowner opts to sell it to a fellow Christian. The other prospective buyers cannot claim that they were discriminated against because the homeowner’s actions were covered by this exception.

  • A single woman owns a large house in London and lives on the top floor, although the bathroom and toilet facilities are on the first floor. The ground floor is unoccupied and she decides to take in a lodger, sharing the bathroom and toilet facilities. Various prospective tenants apply but she chooses only to let the ground floor to another woman. This would be permissible under this exception.

  • A Jewish family own a large house but only live in part of it. They decide to let out an unoccupied floor but any new tenant will have to share kitchen and cooking facilities. The family choose only to let the unoccupied floor to practising Jews as they are concerned that otherwise their facilities for keeping their food kosher may be compromised. This would be permissible under this exception.

Schedule 6: Office-holders: excluded offices

Effect

758.     This Schedule provides that an office or post is not treated as a personal or public office in the Bill in circumstances where the office-holder is protected by one of the other forms of protection given in Part 5 of the Bill - employment, contract work, employment services (as they relate to work experience), partnerships, limited liability partnerships, barristers and advocates. It also provides that political offices, life peerages, and any other dignity or honour conferred by the Crown are not personal or public offices for the purposes of the Bill.

Background

759.     The Schedule replaces similar provisions in current legislation. The conferral of honours and dignities is treated as a public function for the purposes of the Bill, and the specific provisions formerly found in the Race Relations Act 1976 alone are not replicated. Public bodies’ activities in relation to honours and dignities will also be subject to the public sector equality duty.

Example

  • A person appointed as a commissioner of a public body may be both an employee and an office holder. Such a person will be protected under the employment provisions in clause 39 as against his employer, and under the office holder provisions in clauses 49 or 50 and 51 as against the person who appointed him and/or any relevant person.

Schedule 7: Equality of terms: exceptions

Part 1: Terms of work

Compliance with laws regulating employment of women, etc.

760.     Part 1 of this Schedule sets out exceptions to the operation of a sex equality clause or a maternity equality clause. It provides that such clauses will not have effect on any terms of employment, appointment or service that are governed by laws regulating employment of women. A few of these remain, mainly for health and safety purposes. A sex equality clause will also have no effect on terms giving special treatment to women in connection with pregnancy or childbirth.

Background

761.     This Schedule replaces similar provisions in the Equal Pay Act 1970.

Part 2: Occupational pension schemes

Effect

762.     Part 2 of this Schedule sets out certain circumstances where a sex equality rule does not have effect in relation to occupational pension schemes.

763.     It allows payments of different amounts for comparable men and women, in prescribed circumstances, if the difference is only because of differences in retirement benefits to which men and women are entitled. It permits payment of different amounts where those differences result from the application of prescribed actuarial factors to the calculation of employer’s contributions to an occupational pension scheme. It also permits payment of different amounts where actuarial factors are applied to the determination of certain prescribed benefits.

764.     It also contains a regulation making power to vary or add to these circumstances. The regulations may make provision for past periods, but not for pensionable service before 17th May 1990.

Background

765.     This replaces similar provisions in section 64 of the Pensions Act 1995.

Schedule 8: Work: reasonable adjustments

Effect

766.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to an employer, or other persons under Part 5 of the Bill. It sets out the three requirements of the duty which apply where an “interested” disabled employee or job applicant is placed at a substantial disadvantage compared to non-disabled employees or applicants. As the duty is owed to an “interested” disabled employee or job applicant, it is not an anticipatory duty which means that an employer is not required to anticipate the needs of potential disabled employees or job applicants and make reasonable adjustments in advance of their having an actual disabled employee or job applicant

767.     The tables set out who is an interested disabled person in relation to different categories of “relevant matters” and the circumstances in which the duty applies in each case. These tables capture how the duty applies in a number of areas related to work, for example to qualifications bodies and to trade organisations and there is a regulation making power to enable further detail to be set out about how the duty applies to local authorities in respect of disabled members.

768.     The Schedule also sets out the circumstances in which lack of knowledge of the person’s disability or that a disabled person may be an applicant for a job means that the duty does not apply.

Background

769.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995. The Schedule provides greater clarity than in the Disability Discrimination Act that a duty to make reasonable adjustments includes a requirement to provide an auxiliary aid if this would overcome the substantial disadvantage to the disabled person.

Examples

  • An employer provides specially-adapted furniture for a new employee with restricted movement in his upper limbs. This is likely to be a reasonable adjustment for the employer to make.

  • A large employer is recruiting for posts which routinely attract a high number of applications. He arranges for large print application forms to be available for any visually-impaired people applying for a job. This is likely to be a reasonable adjustment for the employer to make.

Schedule 9: Work: exceptions

Part 1: Occupational requirements

770.     Part 1 of this Schedule concerns requirements for particular kinds of work.

General: paragraph 1

Effect

771.     This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age - or not being a transsexual person, married or a civil partner - is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.

772.     The exception can be used by employers, principals (as defined in clause 41) in relation to contract work, partners, members of Limited Liability Partnership (LLPs) and those with the power to appoint or remove office-holders, or to recommend an appointment to a public office.

Background

773.     This paragraph replicates the effect of exceptions for occupational requirements in current discrimination legislation, and creates new exceptions in relation to disability and to replace the existing exceptions for occupational qualifications in relation to sex, gender reassignment, colour and nationality. It differs from the existing exceptions for occupational requirements in that it makes clear that the requirement must pursue a legitimate aim and that the burden of showing that the exception applies rests on those seeking to rely on it.

Examples

  • The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a black man to play the part of Othello) or modelling jobs.

  • Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.

  • An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL.

  • Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.

  • A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing them further distress.

Religious requirements relating to sex, marriage etc., sexual orientation: paragraph 2

Effect

774.     Where employment is for the purposes of an organised religion, this paragraph allows the employer to apply a requirement to be of a particular sex, not to be a transsexual person or make a requirement related to the employee’s marriage, civil partnership or sexual orientation, but only if -

  • appointing a person who meets the requirement in question is a proportionate way of complying with the doctrines of the religion; or,

  • because of the nature or context of the employment, employing a person who meets the requirement is a proportionate way of avoiding conflict with a significant number of the religion’s followers’ strongly held religious convictions.

775.     The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext.

776.     Employment can only be classified as being for the purposes of an organised religion if the employment wholly or mainly involves promoting the religion, or explaining its doctrines, or leading or assisting in the observance of religious practices or ceremonies.

777.     The requirement can also be applied by a qualifications body in relation to a relevant qualification (within the meaning of clause 54), if the qualification is for employment for the purposes of an organised religion as defined above and either of the criteria described in paragraph 773 above are met.

Background

778.     This specific exception applies to a very narrow range of employment. It replaces and harmonises exceptions contained in current discrimination law but makes it clear that the employment in question must be closely related to the religious purposes of the organisation. Applying the requirement must be a proportionate way of meeting either of the criteria described in paragraph 773 above.

Example

  • This exception would apply to a requirement that a Catholic priest be a man.

  • This exception is unlikely to permit a requirement that a church youth worker who primarily organises sporting activities is celibate if they are gay, but may apply if the youth worker mainly teaches Bible classes.

  • This exception would not apply to a requirement that a church accountant be celibate if they are gay.

Other requirements relating to religion and belief: paragraph 3

Effect

779.     This paragraph allows an employer with an ethos based on religion or belief to discriminate in relation to work by applying a requirement to be of a particular religion or belief, but only if, having regard to that ethos -

  • being of that religion or belief is a requirement for the work (this requirement must not be a sham or pretext); and

  • applying the requirement is proportionate so as to achieve a legitimate aim.

780.     It is for an employer to show that it has an ethos based on religion or belief by reference to such evidence as the organisation’s founding constitution.

Background

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

Example

  • A religious organisation may wish to restrict applicants for the post of head of its organisation to those people that adhere to that faith. This is because to represent the views of that organisation accurately it is felt that the person in charge of that organisation must have an in-depth understanding of the religion’s doctrines. This type of discrimination could be lawful. However, other posts that do not require this kind of in-depth understanding, such as administrative posts, should be open to all people regardless of their religion or belief.

Armed forces: paragraph 4

Effect

782.     This paragraph allows women and transsexual people to be excluded from service in the armed forces if this is a proportionate way to ensure the combat effectiveness of the armed forces.

783.     It also exempts the armed forces from the work provisions of the Bill relating to disability and age.

Background

784.     This paragraph replicates the effects of exemptions for the armed forces in current legislation, but narrows the scope of the existing combat effectiveness exception so that this applies only to direct discrimination in relation to recruitment and access to training, promotion and transfer opportunities.

Examples

  • Only ground close-combat roles requiring Service personnel to deliberately close with and kill the enemy face-to-face are confined to men. Women and transsexual people are, therefore, currently excluded from the Royal Marines General Service, the Household Cavalry and Royal Armoured Corps, the Infantry and the Royal Air Force Regiment only.

Employment services: paragraph 5

Effect

785.     This paragraph makes it lawful for an employment service-provider to restrict a service to people with a particular protected characteristic if the treatment relates either to work for which having that characteristic is an occupational requirement, or to training for such work.

786.     The service provider can rely on the exception by showing that he or she reasonably relied on a statement from a person who could offer the work in question that having the particular characteristic was an occupational requirement. It is, however, a criminal offence for such a person to make a statement of that kind which they know to be false or misleading.

Background

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

Example

  • The provider of a Catholic theological training course required exclusively for those training to be Catholic priests may limit access to the course to Catholics because the training relates to work the offer of which can be limited to Catholics by virtue of an occupational requirement.

Interpretation: paragraph 6

Effect

788.     This paragraph defines “work” for the purposes of Part 1 of the Schedule and provides that the exceptions in this Part are available in respect of direct discrimination in recruitment, access to promotion, transfer or training, or (except in the case of sex discrimination) dismissal only. None of these exceptions can be used to justify indirect discrimination or harassment.

Part 2: Exceptions relating to age

Retirement: paragraph 8

Effect

789.     This paragraph allows employers to dismiss on the grounds of retirement employees at the age of 65 or over without this being regarded as age discrimination and/or unfair dismissal. However, where an employee has a normal retirement age which is applicable to him which exceeds the age of 65, if the employee is dismissed on the grounds of retirement before he has reached that normal retirement age, this is capable of amounting to age discrimination and/or unfair dismissal.

790.     This exception applies only to employees within the meaning of section 230(1) of the Employment Rights Act 1996, those in Crown employment, and House of Lords and House of Commons staff. This paragraph needs to be read closely with the amendments to the unfair dismissals provisions of Part 10 of the Employment Rights Act 1996, which are amended by Schedule 8 to the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031) (“the 2006 Regulations) and which amendments will remain in place when this paragraph is commenced.

791.     Under paragraph 8(3) retirement is a reason for dismissal only if it is a reason for dismissal by virtue of Part 10 of the Employment Rights Act 1996. Schedule 6 of the 2006 Regulations (which will remain in place) sets out the procedures that need to be followed by an employer in order for the reason for the dismissal to be retirement under the sections inserted into Part 10 of the Employment Rights Act 1996 by Schedule 8 of the 2006 Regulations, and in order for the dismissal to be fair.

Background

792.     Paragraph 8 preserves the existing exception for retirement currently provided for by regulation 30 of the 2006 Regulations, and accompanying provisions at Schedule 6 and Schedule 8 to the 2006 Regulations.

793.     Before the coming into force of the 2006 Regulations, the concept of retirement was not legally defined. Where an employee was either over 65 or the employer’s normal retirement age, the employee did not have the right to claim unfair dismissal. The employee could be compulsorily retired once he had reached the employer’s normal retirement age, or 65. The removal of this age cap on the right to claim unfair dismissal was removed by the 2006 Regulations.

794.     Compulsory retirement ages are a form of direct age discrimination. Where the retirement age is below the age of 65 (or the employers normal retirement age if over the age 65) it will need to be objectively justified.

795.     The Government considers this exception for retirement ages of 65 and over to be within the exemption contained in article 6(1) of the Council Directive 2000/78/EC (“the Directive”) as being justified by reference to a legitimate aim of social policy.

796.     The Government’s position is that the default retirement age will remain in place until such point in the future as evidence shows that it may either be raised, or is no longer necessary. The Government has committed to review it in 2010, and evidence gathering for this purpose is already underway.

Examples

  • An employee has reached the age of 65. Her employer has followed the correct procedure for the reason for dismissal to be deemed retirement. She is dismissed by reason of retirement. This is not direct age discrimination.

  • An employer dismisses his employee on her 65th birthday by giving her notice, but does not follow the correct procedure. This is direct age discrimination.

Applicants at or approaching retirement age: paragraph 9

Effect

797.     As a result of this paragraph it is not unlawful discrimination for an employer to decide not to offer employment to a person where, at the time of the person’s application to the employer he is over the employer’s normal retirement age or he is over the age of 65 if the employer has no normal retirement age.

798.     It is also not unlawful to refuse to offer employment where the applicant will reach the employer’s normal retirement age or the age of 65 (if the employer has no normal retirement age) within six months of the application for employment.

799.     For these purposes, the employer’s normal retirement age must be 65 or over and has the same meaning as is given in section 98ZH of the Employment Rights Act 1996 (as inserted by Schedule 8 to the 2006 Regulations).

800.     The employees to which paragraph 9 applies are the same group of employees to which paragraph 8 (exception for retirement) applies. That is to say, employees within the meaning of section 230(1) of the Employment Rights Act 1996, Crown employees, House of Lords staff and House of Commons staff.

Background

801.     Paragraph 9 preserves the existing exception currently provided for at regulation 7(4) of the 2006 Regulations.

802.     The rationale for this exclusion from the requirement not to discriminate flows from the rationale for paragraph 8 (exception for retirement). There is little point in requiring an employer not to discriminate at the point of receiving an application from a prospective employee when, if he were to employ the person, that person could be retired (without it amounting to discrimination to do so) within six months of their appointment.

803.     The appointment provisions are inextricably bound up with the retirement provisions and will be reviewed by the Government at the same time as the review of the default retirement age, planned for 2010.

Examples

  • An applicant is 66 years old at the time of applying for a job to work in on organisation where there is no normal retirement age. It is lawful for the employer to refuse his application simply on the basis of the applicant’s age.

  • An applicant is 69 years and 8 months old at the time of making an application to work in an organisation that has a normal retirement age of 70. Because the applicant will reach the age of 70 within 6 months, it is lawful for the employer to refuse his application.

 
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Prepared: 4 December 2009