Equality Bill - continued          House of Lords

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Part 4: Admissions and exclusions

905.     If the disability discrimination claim made is in respect of admissions to, or permanent exclusion from, a maintained school or an Academy, then the claim will be brought under independent education appeals panel arrangements as set out in education legislation, rather than going to the tribunals.

Background

906.     This provision is designed to replicate the provisions in the Disability Discrimination Act 1995.

Examples

  • A school pupil is not allowed to join other children in the playground at break-times because of his wheelchair and his parents believe he is being discriminated against because of his disability. They are able to bring a claim against the school which is heard by the First-tier Tribunal (in England). The Tribunal rules in favour of the pupil and makes an order for the school to alter the practice which caused the discrimination and make arrangements for the pupil to join his peers at break time.

  • A pupil is refused admission to a school and her parents believe that it is because of her disability and make a claim. The claim cannot be heard by the First-tier Tribunal and is heard by an independent education appeals panel under education legislation.

Schedule 18: Public sector equality duty: exceptions

Effect

907.     This Schedule lists exceptions to the coverage of the public sector equality duty.

908.     Paragraph 1 disapplies the equality duty with respect to age in relation to the education of pupils in schools and the provision of services to pupils in schools and in relation to children’s homes.

909.     Paragraph 2 disapplies the equality of opportunity limb of the equality duty in relation to immigration functions in respect of race (except as it includes “colour”), religion or belief or age in relation to immigration functions.

910.     Paragraph 3 disapplies the equality duty in respect of judicial functions or functions exercised on behalf of, or on the instructions of, a person exercising judicial functions. A judicial function includes judicial functions which are carried out by persons other than a court or tribunal, for example courts martial.

911.     Paragraph 4 disapplies the equality duty in respect of any public functions (as that term is defined for the purposes of the Human Rights Act 1998) performed by the persons listed in sub-paragraph (2), or in relation to the functions listed in sub-paragraph (3).

912.     Paragraph 5 contains a power for a Minister of the Crown by order to add, change or remove an exception to the scope of the equality duty.

Background

913.     This Schedule replaces the exception for immigration functions from the race duty in section 71A of the Race Relations Act. It also replaces sections 76A(3) and (4) of the Sex Discrimination Act 1976 and sections 49C and 49D of the Disability Discrimination Act 1995 relating to excepted bodies and functions.

Examples

  • A school will not be required to consider advancing equality of opportunity between pupils on the grounds of age. Nor will it be required to consider how to foster good relations between pupils on the grounds of age. But it will still need to give due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between pupils in respect of the other protected characteristics.

  • The UK Border Authority, when taking immigration-related decisions, will not be required to give due regard to the need to advance equality of opportunity for people of different races, religious beliefs or age when taking those decisions. However, it will still be required to give due regard to the need to advance equality of opportunity for disabled people, for men and women, for people of all sexual orientations and transsexual people when making those decisions.

Schedule 19: Public authorities

Effect

914.     This Schedule lists those public bodies which are subject to the public sector equality duty contained in clause 148(1). It is divided into three Parts: public bodies generally; relevant Welsh bodies; and relevant Scottish bodies. There is provision for a fourth part to be added for cross-border Welsh and Scottish bodies. Subsection (2) of clause 148 applies the public sector equality duty to other persons who are not listed in the Schedule, but who are carrying out public functions, but only with regard to the exercise of those functions. The powers in clauses 152 and 153 to impose specific duties only apply to bodies listed in the Schedule; they do not extend to persons who are subject to the public sector equality duty by virtue of subsection (2) of clause 148.

Background

915.     This Schedule uses as its starting point Schedule 1A to the Race Relations Act 1976.

Schedule 20: rail vehicle accessibility: compliance

916.     The provisions of this Schedule are tied to those of clause 184 which provides for the Schedule to be repealed if not brought into force (either fully or to any extent) by 31st December 2010.

917.     This approach is required since the Department for Transport has recently completed a consultation, in tandem with the passage of this Bill through Parliament, on a re-appraisal of the compliance certification and civil enforcement regimes of sections 47A to 47M of the Disability Discrimination Act 1995, together with new rail vehicle accessibility regulations prepared under section 46 of the Disability Discrimination Act 1995.

918.     Responses to that exercise have indicated that the Government's preferred option of not commencing the provisions contained in Schedule 20 is widely supported by stakeholders.

Paragraphs 1 to 4

919.     These paragraphs introduce the concept of “compliance certification” into the rail vehicle accessibility regime. The effect would be to require prescribed rail vehicles to have a rail vehicle accessibility compliance certificate (which certifies compliance with accessibility standards).

Rail vehicle accessibility compliance certificates: paragraph 1

Effect

920.     This paragraph provides for the introduction of compliance certification into the rail vehicle accessibility regime by prohibiting a regulated rail vehicle from being used in passenger service unless a valid compliance certificate has been issued for that rail vehicle. Regulations are required to set out which rail vehicles will require a compliance certificate.

921.     It also contains provisions to enable a penalty to be paid to the Secretary of State should a regulated rail vehicle, which is required to have a compliance certificate, be operated in passenger service without one.

922.     In circumstances where the Secretary of State has refused to issue a compliance certificate, provisions are made for the applicant to ask for a review of that decision, within a maximum time period to be set in regulations, taking into account any written representations that may be presented by the applicant. A fee can be charged to recover the costs of undertaking such a review.

Background

923.     This paragraph replicates the provisions of sections 47A and 47D of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Regulations as to compliance certificates: paragraph 2

Effect

924.     This paragraph enables regulations to be made setting out how the compliance certification regime introduced by paragraph 1 will operate in practice. For example, the regulations may specify who may apply for a compliance certificate, the conditions to which they are subject and the period for which they will remain in force.

Background

925.     This paragraph replicates some of the provisions of section 47B (1) to (3) of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Regulations as to compliance assessments: paragraph 3

Effect

926.     This paragraph provides for regulations to be made for the undertaking of compliance assessments, including provision as to who may carry out assessments, and may provide that assessments be carried out by persons appointed by the Secretary of State (to be known as an “appointed assessor”).

927.     Sub-paragraph (3) enables regulations to make provision about the appointment of appointed assessors, for them to charge fees in connection with their work, to prescribe procedures and for the referral of disputes between an appointed assessor and a person who requested a compliance assessment.

Background

928.     This paragraph replicates the remaining provisions of section 47B of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force not replicated in paragraph 2.

Fees in respect of compliance certificates: paragraph 4

Effect

929.     It enables regulations to be made setting out the fees which the Secretary of State may charge to recover the costs of carrying out certain administrative tasks relating to the issuing of compliance certificates. Any fees which are received must be paid into the Consolidated Fund. Before making any regulations under this paragraph, the Secretary of State must consult representative organisations.

Background

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

Paragraphs 5 to 12

931.     Paragraphs 5 to 12 make provision for a civil enforcement regime which enables penalties to be levied for non-compliance with rail vehicle accessibility regulations.

Penalty for using rail vehicle that does not conform with accessibility regulations: paragraph 5

Effect

932.     This paragraph sets out the procedure to be followed by the Secretary of State in respect of an operator of a regulated rail vehicle which appears not to comply with the construction requirements of rail vehicle accessibility regulations. The procedure involves the issue of “improvement” and “final” notices and, if the vehicle is used despite still being non-compliant with those elements of rail vehicle accessibility regulations with which it is required to conform, the Secretary of State may impose a penalty. The various timescales leading up to the imposition of the penalty are to be set out in regulations.

Background

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

Penalty for using rail vehicle otherwise than in conformity with accessibility regulations: paragraph 6

Effect

934.     This paragraph makes similar provisions to paragraph 5 but in respect of vehicles used in a way which does not comply with the operational, rather than technical, requirements of accessibility regulations. For example, a regulated rail vehicle may have appropriate equipment to assist a disabled person in getting on or off the vehicle, such as a lift or ramp, but no member of staff is available to operate it.

Background

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

Inspection of rail vehicles: paragraph 7

Effect

936.     This paragraph sets out powers of inspection, to be available where the Secretary of State has reasonable grounds for suspecting that a regulated rail vehicle does not conform with those provisions of accessibility regulations with which it is required to conform. The paragraph also grants similar powers of inspection following the issuing of notices under paragraph 6. “Inspectors” are empowered to examine and test such rail vehicles and to enter premises at which it is believed they are kept, and to enter them. If an inspector is intentionally obstructed in the exercise of these powers by an operator, or someone acting on the operator’s behalf, the Secretary of State may, in certain circumstances, impose a penalty on the operator.

Background

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

Supplementary powers: paragraph 8

Effect

938.     This paragraph allows the Secretary of State to issue a notice to a rail vehicle operator requiring them to provide information by a specified deadline to enable a rail vehicle which is described in that notice to be identified. A penalty may be imposed on the recipient of such a notice if they fail to provide the information required by the deadline, which must be a minimum of 14 days from the date on which the notice is given.

939.     Provision is also included to incentivise compliance with notices served under paragraphs 5 or 6 (notices requiring rail operators to make vehicles, or their use, compliant with accessibility regulations). Operators may be required to state what steps they are taking to comply with such notices.

940.     In default of providing this information, the Secretary of State is empowered to proceed to the “further notice” stage under paragraphs 5 or 6, a precursor to charging a penalty for non-compliance.

Background

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

Penalties: amount, due date and recovery: paragraph 9

Effect

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

Background

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

Penalties: code of practice: paragraph 10

Effect

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

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

Background

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

Penalties: procedure: paragraph 11

Effect

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

Background

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

Penalties: appeals: paragraph 12

Effect

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

Background

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

Forgery etc.: paragraph 13

Effect

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

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

Background

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

Interpretation: paragraph 14

Effect

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

955.     Under sub-paragraph (2), if a rail vehicle to which this Schedule applies is the subject of an exemption order, issued under clause 181, then a reference in this Schedule to a rail vehicle accessibility requirement will not include a requirement from which that vehicle is exempt.

Background

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

Schedule 21: Reasonable adjustments: supplementary

Effect

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

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

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

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

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

Background

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

Examples

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

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

Schedule 22: Statutory provisions

Statutory authority: paragraph 1

Effect

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

Background

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

Examples

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

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

Protection of women: paragraph 2

Effect

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

Background

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

Examples

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

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

 
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Prepared: 4 December 2009