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Example

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

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

Effect

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

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

Examples

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

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

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

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

Part 2: Religious or belief-related discrimination

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

Background

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

Schools with religious character: paragraph 5

Effect

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

Examples

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

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

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

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

Curriculum, worship etc.: paragraph 6

Effect

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

Background

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

Examples

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

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

Power to amend: paragraph 7

Effect

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

Background

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

Permitted form of selection: paragraph 8

Effect

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

Background

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

Example

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

Schedule 12: Further and higher education exceptions

Part 1: Single-sex institutions

Effect

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

Background

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

Admission to single-sex institutions: paragraph 1

Effect

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

Examples

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

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

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

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

Effect

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

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

Background

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

Examples

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

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

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

Part 2: Other exceptions

Occupational requirements: paragraph 4

Effect

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

Background

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

Example

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

Institutions with a religious ethos: paragraph 5

Effect

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

Background

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

Benefits dependent on marital status: paragraph 6

Effect

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

Background

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

Child care: paragraph 7

Effect

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

Background

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

Example

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

Schedule 13: Education: reasonable adjustments

878.     This Schedule provides for reasonable adjustments to be made by educational bodies.

Effect

879.      Paragraph 2 requires schools to comply with requirements to take reasonable steps to ensure that any provisions, criteria or practices do not place disabled pupils at a substantial disadvantage in comparison to non-disabled pupils in relation to admissions and provisions of education and access to benefits, facilities and services.

880.     Paragraph 3 requires higher or further education institutions in relation to admissions, education, access to benefits, facilities and services, and the conferring of qualifications to comply with requirements to take reasonable steps to:

  • ensure that any provisions, criteria or practices do not place disabled students at a substantial disadvantage in comparison with non-disabled students;

  • take reasonable steps to change physical features which place disabled students at a disadvantage.

881.     Paragraph 4 defines who is an “interested disabled person”, in relation to conferment of qualifications. It also sets out that a provision, criterion or practice does not include an application of a competence standard, which is also defined.

882.     Paragraph 5 requires local authorities and maintained schools who are providing higher education or further education to take reasonable steps to ensure that any provisions, criteria or practices do not place disabled persons at a substantial disadvantage in relation to enrolling persons on courses of further or higher education, and to services provided once enrolled.

883.     Paragraph 6 requires local authorities providing recreational or training facilities to take reasonable steps to ensure that any provisions, criteria or practices do not place disabled persons at a substantial disadvantage in relation to their arrangements for providing recreational or training facilities.

884.     Paragraph 7 requires educational institutions to consider the relevant code of practice produced by the Equality and Human Rights Commission when determining reasonable steps.

885.     Paragraph 8 requires that, when making any reasonable adjustment for a particular person, the educational institution needs to consider any request made by that person to keep the nature and existence of that person’s disability confidential.

886.     Paragraph 9 sets out that qualifications bodies must take reasonable steps to:

  • ensure that any provision, criterion or practice does not place disabled persons at a substantial disadvantage

  • change physical features which put disabled candidates at a substantial disadvantage, and

  • provide auxiliary aids to disabled candidates who are at a substantial disadvantage in the conferring of qualifications.

Background

887.     These provisions are designed to replicate the effect of provisions in the Disability Discrimination Act 1995.

Examples

  • A school with a number of disabled pupils could negotiate special arrangements for pupils who are taking exams.

  • A school could provide Braille texts to a blind pupil at the start of lessons so they have access to the same information as other pupils.

  • A university has a revolving door which causes some problems for disabled pupils and under these duties it may be reasonable for them to replace the door with a sliding one.

  • To ensure that a pupil who needs a wheelchair is not disadvantaged by being left out of PE lessons, a school consults a physiotherapist and devises special activities for the pupil to carry out in PE.

Schedule 14: Educational charities and endowments

Educational charities: paragraph 1

Effect

888.     This paragraph provides for trust deeds or other instruments concerning educational charities which restrict available benefits to a single sex, to be modified by a Minister of the Crown. This cannot be done within 25 years of the trust being created without the consent of the donor, or the donor’s or testator’s personal representatives. Applicants need to publish particulars of the proposal and invite representations for the Minister to consider before making the order.

Background

889.     This paragraph replicates provisions in section 78 of the Sex Discrimination Act 1975. It is likely to happen when a single sex school becomes co-educational, and so wants to enable both sexes to benefit from a particular charity connected with the school.

Example

  • A single-sex (boys’) Grammar School now allows girls into its sixth form and wishes to modify a trust deed which offers scholarships and help with tuition for boys of the school wanting to go to university - so that it can also offer help to girls.

Endowments: paragraph 2

Effect

890.     A similar power to that in paragraph 1 is given to the Scottish Ministers to modify educational endowments administered in Scotland.

Schedule 15: Associations: reasonable adjustments

Effect

891.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to associations. Paragraph 2 explains that the duty applies in respect of disabled members and guests including prospective members and guests and that the association must comply with all three reasonable adjustment requirements. It describes the types of adjustments an association must make, stipulates what the duty does not require and provides further information on the meaning of “physical features”. It is an anticipatory duty which means associations must anticipate the needs of disabled members and guests including prospective members and guests and make appropriate reasonable adjustments.

Background

892.     This Schedule is designed to replicate the effect of similar provisions in the Disability Discrimination Act 1995.

Examples

  • A private club with 30 members usually holds its annual dinner upstairs in a local restaurant. However, as there is no lift, the room is not accessible to two new disabled members who have severe difficulty in climbing stairs. Under the duty the club would need to think about changing the venue to a downstairs room to accommodate the new members. This is likely to be a reasonable adjustment for the club to make.

  • A club has members who cannot read standard print. Under the duty it would need to think about providing information in large print and on audio tape for them. These are likely to be reasonable adjustments for the club to make.

Schedule 16: Associations: exceptions

893.     Schedule 16 contains exceptions from the association provisions in Part 7 of the Bill.

Single characteristic associations: paragraph 1

Effect

894.     This paragraph allows an association whose main purpose is to bring together people who share a particular characteristic (such as a particular nationality, sexual orientation or a particular disability) to continue to restrict membership to such people, and impose similar restrictions on those who can exercise the rights of an associate, or who can be invited as guests.

895.     It is however unlawful for an association to restrict its membership to people of a particular colour.

Background

896.     An exception for associations which bring together people who share a particular protected characteristic is provided in current legislation in relation to race or sexual orientation. This exception will be extended to cover all of the protected characteristics in line with the prohibition on discrimination.

Example

  • A club for deaf people can restrict membership to people who are deaf and would not need to admit people with other disabilities, such as a blind person.

Health and safety: paragraph 2

Effect

897.     This paragraph is designed to ensure that it is not unlawful for an association to treat a pregnant woman differently in the terms on which she is admitted as a member or is given access to benefits as a member if the association reasonably believes that to do otherwise would create a risk to her health or safety and the association would take similar measures in respect of persons with other physical conditions. Equivalent provision is made in respect of associates and guests.

Background

898.     Provisions making it unlawful for an association to discriminate against a pregnant woman are being introduced for the first time in the Bill. The provisions in this paragraph, which are similar to those which apply in the provision of services to the wider public, are therefore also new.

Example

  • A private member’s gym may wish to restrict access to squash courts after a certain point in the pregnancy (for example, after 36 weeks).

Schedule 17: Disabled pupils: enforcement

Part 1: Introductory

899.     This Schedule sets out the arrangements for making disability discrimination claims in respect of school pupils.

Part 2: Tribunals

Jurisdiction: paragraph 3

900.     Disability discrimination claims in respect of school pupils are made to the First-tier Tribunal in England and to the Special Educational Needs Tribunal in Wales, unless they relate to admissions or exclusions. Claims are brought by the child’s parent.

Time for bringing proceedings: paragraph 4

901.     Claims need to be made within six months of conduct commencing. This period can be extended to nine months if the Equality and Human Rights Commission makes arrangements for conciliation in respect of disputes. In addition, tribunals could consider cases beyond this time limit.

Powers: paragraph 5

902.     If a tribunal finds that a school has discriminated against a pupil, it can make any orders it sees fit, particularly in order to remove or reduce the problem. However, it may not award the payment of compensation.

Procedure: paragraph 6

903.     The Welsh Ministers are given powers to make regulations to govern the procedure of claims heard by the Welsh Tribunal.

Part 3: Tribunals in Scotland

904.     In Scotland the power to make procedural rules for the hearing of disability discrimination claims by the Additional Support Needs Tribunals for Scotland will be exercised by the Scottish Ministers.

 
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Prepared: 4 December 2009