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Educational appointments etc: religious belief: paragraphs 3 and 4

Effect

967.     Paragraph 3 provides an exception from the provisions on sex or religious discrimination for certain posts in schools or institutions of further or higher education where their governing instrument requires the head teacher or principal to be of a particular religious order, or that a particular academic position must be held by a woman, or where the legislation or instrument which establishes a professorship requires the holder to be an ordained priest. In the case of academic positions reserved to women, the exception only applies where the governing instrument was made before 16th January 1990.

968.     There is an order-making power conferred on a Minister of the Crown to withdraw the exception either in relation to a particular institution or a class of institutions.

969.     Paragraph 4 provides that it is not unlawful discrimination for schools which have a religious character or ethos (often referred to as faith schools) to do certain things which are permitted by the School Standards and Framework Act 1998. This includes:

  • allowing teachers who have been appointed to give religious education to be dismissed if they fail to give it competently;

  • allowing a faith school to take account of religious considerations when appointing a head teacher; and

  • allowing a voluntary aided school or an independent school to take account of religious considerations in employment matters.

Background

970.     Paragraph 3 is designed to replicate the effect of provisions in section 5 of the Employment Act 1989.

971.     Universities restrict Canon Professorships to certain religions since such posts can only be held by ordained Ministers.

972.     Paragraph 4 is designed to replicate the effect of regulation 39 of the Employment Equality (Religion or Belief) Regulations 2003.

Examples

  • Voluntary controlled and foundation schools with a religious ethos may appoint a head teacher on the basis of his ability and fitness to preserve and develop the religious character of the school.

  • Voluntary Aided schools with a religious ethos can restrict employment of teachers to applicants that share the same faith. For example most Catholic schools may require that applicants to teaching positions be of the Catholic faith.

Crown employment etc.: paragraph 5

Effect

973.     Paragraph 5 allows restrictions on the employment of foreign nationals in the civil, diplomatic, armed or security and intelligence services and by certain public bodies. It also allows restrictions on foreign nationals holding public offices.

Background

974.     The paragraph replaces similar provisions in the Race Relations Act 1976.

Examples

  • Posts in the security and intelligence services are automatically reserved for UK nationals.

  • People who are neither British, Commonwealth or Irish citizens nor British protected persons are generally prohibited from serving in the armed forces, with the notable exception of Gurkhas.

Schedule 23: General exceptions

Acts authorised by statute or the executive: paragraph 1

Effect

975.     This paragraph allows direct nationality discrimination and indirect race discrimination on the basis of residency requirements where the discrimination is required by law, Ministerial arrangements or Ministerial conditions.

Background

976.     The paragraph replaces a similar exception in the Race Relations Act 1976.

Examples

  • The points-based system which replaced the former work permit arrangements can discriminate on the basis of nationality in determining whether migrants from outside the European Economic Area and Switzerland should be given permission to work in the United Kingdom.

  • The NHS can charge some people who are not ordinarily resident in the United Kingdom for hospital treatment they receive here.

  • Overseas students at universities in England and Wales can be required to pay higher tuition fees than local students (there are no tuition fees in Scotland).

Organisations relating to religion or belief: paragraph 2

Effect

977.     Paragraph 2 provides an exception for religious or belief organisations with regard to the provisions in the Bill relating to services and public functions, premises and associations.

978.     The types of organisation that can use this exception are those that exist to: practice, advance or teach a religion or belief; allow people of a religion or belief to participate in any activity or receive any benefit related to that religion or belief; promote good relations between people of different religions or beliefs. Organisations whose main purpose is commercial cannot use this exception.

979.     The exception allows an organisation (or a person acting on its behalf) to impose restrictions on membership of the organisation; participation in its activities; the use of any goods, facilities or services that it provides; and the use of its premises. However, any restriction can only be imposed by reference to a person’s religion or belief or their sexual orientation.

980.     In relation to religion or belief, the exception can only apply where a restriction is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion or belief that the organisation represents.

981.     In relation to sexual orientation, the exception can only apply where it is necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents. However, if an organisation contracts with a public body to carry out an activity on that body’s behalf then it cannot discriminate because of sexual orientation in relation to that activity.

982.     The exception also enables ministers of religion to restrict participation in the activities that they carry out in the performance of their functions as a minister and access to any goods, facilities or services they provide in the course of performing those functions.

Background

983.     This paragraph replicates the effect of similar provisions in Part 2 of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007.

Examples

  • A Catholic seminary can restrict places for students to those of the Catholic faith. This would not be unlawful religion or belief discrimination.

  • A Church refuses to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held religious convictions of a significant number of its followers. This would not be unlawful sexual orientation discrimination.

  • A religious organisation which has a contract with a local authority to provide meals to elderly and other vulnerable people within the community on behalf of the local authority cannot discriminate because of sexual orientation.

Communal accommodation: paragraph 3

Effect

984.     This paragraph provides an exception to the general prohibition of sex and gender reassignment discrimination. It allows communal accommodation to be restricted to one sex only, as long as the accommodation is managed as fairly as possible for both men and women. It sets out factors which must be considered when restricting communal accommodation to one sex only, and provides that discriminatory treatment of transsexual people must be objectively justified.

985.     Communal accommodation is defined as residential accommodation which includes shared sleeping accommodation which should only be used by members of one sex for privacy reasons.

986.     Where such accommodation is refused in the field of work, or a benefit linked to such accommodation is refused, alternative arrangements must be made where reasonable so as to compensate the person concerned.

Background

987.     This paragraph replaces similar provisions in the Sex Discrimination Act 1975. The scope of the exception has been extended from employment, education and services to all fields.

Examples

  • A hostel only accepts male guests. It is not unlawful for it to refuse to accept female guests because the majority of the bedrooms are shared and there is only one communal bathroom.

  • At a worksite the only available sleeping accommodation is communal accommodation occupied by men. A woman employee who wishes to attend a training course at the worksite is refused permission because of the men-only accommodation. Her employer must make alternative arrangements to compensate her where reasonable, for example, by arranging alternative accommodation or an alternative course.

Training provided to non-EEA residents, etc: paragraph 4

Effect

988.     Paragraph 4 allows less favourable treatment because of a person’s nationality in relation to training and associated benefits that are intended for people who do not live in an EEA state, as long as the training provider believes that the person will not subsequently use the skills obtained in Great Britain. This means that an EEA resident cannot claim to have been discriminated against in relation to this type of activity.

989.     Employment or contract work can be covered by this exception where its sole or main purpose is the provision of training in skills. Special provision is made in relation to defence training to reflect current arrangements to help provide other nations with the skills to assist the United Kingdom in addressing global conflict and supporting the United Kingdom on multi-national operations.

Background

990.     The main purpose of this provision is to enable people from developing countries to acquire vital skills which may not be available in their country of residence. It replaces similar provisions in the Race Relations Act 1976. The general rule on non-residence has been extended from Great Britain to include all EEA states, except in relation to defence training which is provided to forces from other EEA states as well as those outside the EEA.

Example

  • It is not unlawful for a company specialising in sustainable irrigation that offers a training scheme in Great Britain for people who live in Mozambique, who then return home to put the skills learned into practice, to refuse to offer the same training to someone who lives in Great Britain.

Schedule 24: Harmonisation: exceptions

Effect

991.     This Schedule sets out the provisions of the Bill to which the power in clause 196 does not apply. These are largely provisions where all the equality provisions are clearly governed by Community law or where power exists under other legislation to deal with any anomalies that may otherwise arise. Accordingly it will not be possible to amend these provisions using the power in clause 196 to bring them into line, where needed, with changes in European law.

Schedule 25: Information society services

Effect

992.     This Schedule ensures that the provisions of the Bill do not conflict with the requirements of Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 (“the E-Commerce Directive”). It provides that where an information society service provider (“the provider”) is established in Great Britain, the provisions of the Bill apply to anything done by the provider in providing the information society service in another EEA state. By contrast, where the provider is established in an EEA state other than the United Kingdom, then the Bill does not apply to anything done by the provider in providing the information society service, even within Great Britain. Various exceptions to the provisions of the Bill are provided in respect of intermediary internet service providers who carry out activities essential for the operation of the internet.

Background

993.     These provisions are new. They are necessary to ensure the United Kingdom correctly transposes the E-Commerce Directive.

Examples

  • An on-line holiday company established in Great Britain refuses to take bookings for shared accommodation from same-sex couples. In this instance a case of direct sexual orientation discrimination could be brought in the British courts regardless of whether the complainant was in the United Kingdom or another EEA member state.

  • An on-line retailer, which provides tickets to major sporting events, provides discounts to large groups of men but not women when booking hospitality packages for the forthcoming football world cup. The on-line retailer is established in Germany so in this instance a case of direct sex discrimination would have to be brought in the German courts regardless of whether the complainant was in the United Kingdom or another EEA member state.

Schedule 26: Amendments

Effect

994.     This Schedule sets out a number of amendments to the following acts: the Local Government Act 1988, the Employment Act 1989 and the Equality Act 2006. These amendments are necessary to ensure that these Acts refer accurately to the new provisions contained in the Bill and work properly with those new provisions. For example, where a new term or a new definition is used in the Bill and an existing Act refers to the term in current legislation which is being repealed, the existing Act needs to be amended to refer to the new term or definition.

Local Government Act 1988: paragraphs 1 to 4

Effect

995.     This paragraph amends Part 2 of the Local Government Act 1988 (“the 1988 Act”) so as to provide that the public bodies to which that Part applies may exercise a function by reference to a non-commercial matter to the extent that the authorities consider it necessary or expedient to do so in order to comply with the equality duty.

Background

996.     Section 17 of the 1988 Act prevents public bodies to which that Part applies from introducing certain non-commercial matters into the procurement process; these are set out at subsection 5 of that Act. Section 18 of the 1988 Act ensured that section 17 of that Act did not restrict those authorities from complying with their duties under the Race Relations Act 1976. It achieved this by permitting those authorities to ask six approved questions of their contractors.

997.     The Local Government Best Value (Exclusion of Non- commercial Considerations) Order 2001 (S.I. 2001/9090) modified sections 17(5)(a) and (d) of the 1988 Act so that matters relating to the terms and conditions of employment etc. of a contractor’s workforce, and the conduct of contractors or their workers in industrial disputes cease to be non-commercial matters only so far as necessary or expedient to permit or facilitate compliance with the best value requirements of the Local Government Act 1999 or the Transfer of Undertakings (Protection of Employment Regulations) 1981. Similar amendments were made for Scotland and Wales.

Examples

  • A local authority which is not a Best Value Authority, which was previously permitted to ask only the six approved questions of its contractors on the race duty, will now be able to consider broader issues on equality when contracting for public supply or works as the authority sees fit in order to comply with the requirements of the public sector equality duty.

  • A local authority wants to contract with a private company. It will be able to take into account the ethnic make-up of the workforce of that company, the behaviour of that company during an industrial dispute, and any other issue which is defined as non-commercial, when deciding to award the contract, but only if it considers it is necessary to do so in order to meet the requirements of the public sector equality duty.

Equality Act 2006: paragraph 13

Effect

998.     This amendment to the Equality Act 2006 allows the Equality and Human Rights Commission to use its enforcement powers, such as the power to conduct investigations and the power to apply for an injunction, in relation to unlawful direct and indirect discrimination under the Bill, including the making of arrangements which would result in direct discrimination, if applied to an individual. It can also use its powers in relation to discrimination arising from disability and discrimination in cases where the relationship between the parties has ended.

999.     It allows the Equality and Human Rights Commission to use its powers whether or not it knows or suspects that an individual has been affected by the discrimination. It makes clear that nothing in the Equality Act 2006 affects an individual’s right to bring a claim under the Bill.

Background

1000.     This amendment partially replaces provisions in current discrimination law relating to discriminatory practices and discriminatory advertisements. The substantive prohibition against discriminatory practices and advertisements is no longer required as it is covered elsewhere in the Bill. This amendment therefore only covers the enforcement aspects of those clauses. Enforcement by the Equality and Human Rights Commission has been extended to cover both direct and indirect discrimination because of any of the protected characteristics, as well as discrimination arising from disability.

Examples

  • A golf club operates an informal but well-known policy of not offering membership to people from ethnic minority communities, which discourages people from these communities from applying. The Equality and Human Rights Commission may investigate this unofficial discriminatory policy even though it is not aware of particular individuals directly affected by it.

  • A Bed and Breakfast (B&B) advertises for customers but includes a statement that it does not welcome people from the Gypsy and Traveller communities. Even though the Equality and Human Rights Commission can take action, an individual who is discouraged from staying at the B&B can still bring a claim in his or her own right.

Schedule 27: Repeals and revocations

Effect

1001.     This Schedule lists the current legislative provisions which will cease to have effect once the relevant provisions in the Bill come into force.

Schedule 28: Index of defined expressions

Effect

1002.     This Schedule lists the terms and expressions which are defined in the Bill and refers the reader to the provision in the Bill where the definition can be found.

EQUALITY BILL

EXPLANATORY NOTES

     These notes refer to the Equality Bill

      as brought from the House of Commons on 3rd December 2009

     [HL Bill 20]

     Ordered to be Printed,

     3rd December 2009

     (c) Parliamentary copyright House of Lords 2009

     Applications for reproduction should be made in writing to the Information Policy Team, Office of Public Sector Information, Kew, Richmond, Surrey TW9 4DU Fax 01603 723000

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     HL Bill 20—EN          54/5

 
 
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Prepared: 4 December 2009