Equality Bill [HL]—continued
        House of Lords

 

SCHEDULE 2

Section 6(2)

PROTECTED AREAS OF ACTIVITY

PART 1

GENERAL

1 (1) The scope of each of the protected areas of activity specified in paragraphs (a) to (f) of section 6(1) is to be determined in accordance with the following provisions of this Schedule.
(2)    Parts 2 to 7 of this Schedule separately set out the scope (with exclusions) of each area of activity and Part 8 of this Schedule contains a number of additional exclusions relevant to some or all of the protected areas of activity.

PART 2

PUBLIC AUTHORITY FUNCTIONS

Meaning of public authority

2 (1) In determining the scope of the protected area of activity specified in section 6(1)(a), the reference in that provision to a public authority includes—
(a)    any person certain of whose functions are functions of a public nature; but
(b)    does not include any person specified in sub-paragraph (2).
(2)    The persons specified in this sub-paragraph are—
(a)    the Security Service;
(b)    the Secret Intelligence Service;
(c)    the Government Communications Headquarters;
(d)    any unit or part of a unit of any of the naval, military or air forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions.
(3)    In relation to a particular act, a person is not a public authority by virtue only of sub-paragraph (1)(a) if the nature of the act is private.
Exclusion for judicial and legislative acts etc

3         There is excluded from the protected area of activity specified in section 6(1)(a)—
(a)    any judicial act; and
(b)    any act done on the instructions, or on behalf of, a person acting in a judicial capacity.

4         There is excluded from the protected area of activity specified in section 6(1)(a) any act of, or relating to, making, confirming or approving any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment.

5         There is excluded from the protected area of a activity specified in section 6(1)(a) any act of, or relating to—
(a)    imposing a requirement of a kind mentioned in paragraph 6(3) of this Schedule; or
(b)    giving an express authorisation of a kind mentioned in that paragraph;
    in relation to the carrying out of immigration functions (within the meaning of paragraph 6(4) of this Schedule).
Exclusion for certain acts in immigration cases

6 (1) There is excluded from the protected area of activity specified in section 6(1)(a) any act done by a relevant person on grounds of nationality in carrying out immigration functions.
(2)    “Relevant person” means—
(a)    a Minister of the Crown acting personally; or
(b)    any other person acting in accordance with a requirement or authorisation to which sub-paragraph (3) applies.
(3)    This sub-paragraph applies to a requirement imposed or express authorisation given—
(a)    with respect to a particular case or class of case, by a Minister of the Crown acting personally;
(b)    with respect to a particular class of case—
(i)    by any of the enactments listed in sub-paragraph (5);
(ii)    by any instrument made under or by virtue of any of those enactments; or
(iii)    by virtue of any provision of Community law which relates to immigration or asylum.
(4)    “Immigration functions” means functions exercisable by virtue of any of the enactments listed in sub-paragraph (5) or by virtue of any provision of Community law which relates to immigration or asylum.
(5)    The enactments listed in this sub-paragraph are—
(a)    the Immigration Acts (within the meaning of the Nationality, Immigration and Asylum Act 2002 (c. 41) but excluding sections 28A to K of the Immigration Act 1971 (c. 77) so far as they relate to offences under part 3 of that Act);
(b)    the Special Immigration Appeals Commission Act 1997 (c. 68);
(c)    any provision made under section 2(2) of the European Communities Act 1972 (c. 68) which relates to immigration or asylum.
Exclusion for decisions not to prosecute etc

7         There is excluded from the protected area of activity specified in section 6(1)(a) a decision not to institute criminal proceedings and, where such a decision has been made, to any act done for the purpose of enabling the decision whether to institute criminal proceedings to be made.
8 (1) Where criminal proceedings are not continued as a result of a decision not to continue them, there is excluded from the protected area of activity specified in section 6(1)(a) the decision not to continue.
(2)    Where such a decision has been made, there is excluded from the protected area of activity specified in section 6(1)(a)—
(a)    any act done for the purpose of enabling the decision whether to continue the proceedings to be made; and
(b)    any act done for the purpose of securing that the proceedings are not continued.
Exclusion for unlawful acts other than discrimination, harassment or victimisation

9         There is excluded from the protected area of activity specified in section 6(1)(a) anything done by a public authority which is made unlawful by any provision of Part 2 of this Act apart from section 9, 12 or 13.

PART 3

ACTS IN THE EMPLOYMENT FIELD

Scope of protected area of activity and interpretation

10 (1) In determining the scope of the protected area of activity specified in section 6(1)(b), the reference in that provision to the affording of opportunities, or the making of decisions or arrangements, in the employment field is to the affording of opportunities, or the making of decisions or arrangements, which relate to—
(a)    conditions for access to employment, to self-employment or to occupation, including selection criteria, recruitment conditions and arrangements, transfer, promotion and other advancement (whatever the branch of activity and at all levels of the professional or occupational hierarchy);
(b)    access to all types, and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c)    employment and working conditions, including pay and other benefits, termination and other detriment, and
(d)    membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession or occupation, including the benefits provided for by such organisations.
(2)    Nothing in this paragraph is to be taken to extend to employment at an establishment outside the European Community.
(3)    The Secretary of State may by regulations prescribe circumstances in which employment is to be taken as being at an establishment outside the European Community and circumstances in which employment is to be taken as not being at such an establishment.
(4)    In the following provisions of this Part of this Schedule—
(a)    references to employment include—
(i)    employment under a contract of service or apprenticeship or a contract personally to do any work (whether the contract is express or implied and, if express, whether oral or in writing);
(ii)    performance by an individual of contract work;
(iii)    performance of the functions associated with any well-recognised office (such as public office or the office of a minister of religion or company director);
(iv)    engagement under a contract for services;
(v)    engagement without reward or compensation;
(vi)    a work placement;
(vii)    participation in arrangements for training (otherwise than in any case falling within any of sub-paragraphs (i) to (vi));
(b)    references to employer are to be construed accordingly; and
(c)    references to worker are to an individual in employment.
11 (1) The following are examples of persons who are concerned with the provision of work and who, in affording opportunities, or making decisions or arrangements, in the employment field, fall within the protected area of activity specified in section 6(1)(b)—
(a)    any person falling within column 1 of the Table in Schedule 3;
(b)    any employment agency;
(c)    any vocational organisation;
(d)    any person who provides services in connection with training for employment in any capacity or for a particular employment (not being services provided by the employer of a person who is seeking to obtain or is receiving those services);
(e)    any person who provides services in connection with training for a particular occupation.
(2)    Any term used in this paragraph which is defined in Schedule 3 has the same meaning in this paragraph as in that Schedule.
12 (1) The scope of the protected area of activity specified in section 6(1)(b) includes the affording of opportunities, or the making of decisions or arrangements, which relate to—
(a)    access to, and benefits payable under, occupational pension schemes entered into by an employer;
(b)    access by workers to insurance services entered into as a result of arrangements between an employer and a provider of insurance.
(2)    The Secretary of State may by order make provision modifying Part 2 of this Act as it applies to—
(a)    trustees or managers of occupational pension schemes; and
(b)    employers.
(3)    An order under sub-paragraph (2) may, in particular, make provision with respect to trustees or managers of occupational pension schemes which differs from that made with respect to employers.
(4)    “Occupational pension scheme” has the same meaning as it has in the Pension Schemes Act 1993 (c. 48).
Exclusion for genuine occupational qualifications

13        There is excluded from the protected area of activity specified in section 6(1)(b) any requirement imposed by a person (“A”) concerning the employment by him of a person in a particular capacity if A shows—
(a)    that the essential nature of the activities to be carried out by a person in that capacity, or the context in which the activities are to be carried out, requires that the activities be carried out by a person with specific characteristics that are related to one or more of the prohibited grounds; and
(b)    that the requirement that a person acting in that capacity must have such characteristics is a genuine and determining requirement that is proportionate to a legitimate objective.
Exclusion for charitable bodies

14 (1) There is excluded from the protected area of activity specified in section 6(1)(b) any requirement imposed by a charitable body concerning the employment by it of a person holding a particular religion or belief if the body shows that requiring that a person in that employment holds that religion or belief is a genuine and determining requirement and one that is proportionate having regard to—
(a)    the ethos of the charitable body based on the religion or belief it promotes;
(b)    the essential nature of the activities carried out by a person in the employment in question; and
(c)    the context in which those activities are carried out.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than religion or belief.
(3)    “Charitable body” means a body with charitable purposes (within the meaning of the Charities Act 1993 (c. 10)), which has as its principal purpose the promotion of a particular religion or belief.
Exclusion for schools with a religious character

15        There is excluded from the protected area of activity specified in section 6(1)(b) any act done in connection with the appointment, remuneration or promotion, or termination of the employment, of a teacher if that act is expressly permitted by—
(a)    section 60 of the School Standards and Framework Act 1998 (c. 31) (staff at foundation or voluntary school with religious character); or
(b)    section 21 of the Education (Scotland) Act 1980 (c. 44).
Exclusion for justifiable age-based discrimination

16 (1) There is excluded from the protected area of activity specified in section 6(1)(b) any requirement imposed by a person (“A”) concerning the employment by him of a person who has, or of a person who has not, attained a certain age (however described) if A shows—
(a)    that imposing a requirement relating to the age of a person in relation to that particular employment is objectively justified by a legitimate objective; and
(b)    that the requirement is genuine and determining and one that is proportionate to a legitimate objective.
(2)    The following are examples of circumstances in which A may be able to show that the requirements of sub-paragraph (1) are met—
(a)    the act is permitted by any existing statutory provision that has effect for the purpose of protecting children and young persons;
(b)    the act is permitted by or under the National Minimum Wage Act 1998 (c. 39);
(c)    the act relates to the calculation of benefits payable under any occupational pension scheme or public sector pension scheme; or
(d)    the act relates to employment in the armed forces.
(3)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than age.
(4)    In this paragraph—
  “existing statutory provision” means any provision of primary or subordinate legislation passed before this Act.
  “public sector pension scheme” has the same meaning as it has in the Pension Schemes Act 1993; and
  “subordinate legislation” has the same meaning as it has in the Human Rights Act 1998 (c. 42).
Exclusion for compulsory retirement

17 (1) There is excluded from the protected area of activity specified in section 6(1)(b) any arrangements made by a person (“A”) (and any act done in connection with such arrangements) under which A's workers are required to retire on or after attaining a prescribed age if A shows that—
(a)    he maintains arrangements for an occupational pension scheme that is open to all workers who are required to retire and that makes provision for payment of benefits on retirement;
(b)    no worker is required to retire unless he has agreed in writing to do so on a standard form supplied by A;
(c)    he operates proper systems to ensure that standard forms returned to him are generally not accepted by him before the end of a minimum period (which may not be less than 28 days after the supply of the form to any particular worker or proposed worker); and
(d)    the standard form states clearly, and in a prominent manner, that the worker should—
(i)    consider carefully what his income is likely to be after retirement; and
(ii)    if appropriate, take advice from a qualified person who may lawfully give advice in respect of such matters.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than age.
(3)    “Occupational pension scheme” has the same meaning as it has in the Pension Schemes Act 1993 (c. 48).
Exclusion for arrangements benefiting a disabled person

18 (1) There is excluded from the protected area of activity specified in section 6(1)(b) any arrangements made by any person—
(a)    which make provision for a disabled person (or disabled persons of a particular description) to receive a particular rate of remuneration or special treatment or facilities; and
(b)    which are, or may be, more advantageous to disabled persons than to persons who do not have a disability.
(2)    There is also excluded from the protected area of activity specified in section 6(1)(b) any act done in connection with, or in pursuance of, such arrangements.
(3)    But the exclusions in sub-paragraph (1) and (2) do not apply in any circumstances where the arrangements or acts are less advantageous to disabled persons than arrangements made or acts done in relation to persons who do not have a disability.

PART 4

ACTS IN THE EDUCATION FIELD

Scope of protected area of activity and interpretation

19 (1) In determining the scope of the protected area of activity specified in section 6(1)(c), the reference in that provision to the affording of opportunities, or the making of decisions or arrangements, in the education field is to the affording of opportunities, or the making of decisions or arrangements, which relate to—
(a)    admission to, or exclusion from, an educational establishment;
(b)    any benefits, facilities or services which are available at such an establishment or in connection with its operation;
(c)    subjecting any person attending the establishment to a detriment.
(2)    In this Part, “educational establishment” means any establishment listed in column 1 of any of Tables 1 to 4 in paragraphs 20 to 23.
(3)    Any reference in this part of this Schedule to the body responsible for an educational establishment is to be construed in accordance with sub-paragraph (1) of each of paragraphs 20 to 23.
Schools in England and Wales

20 (1) In relation to England and Wales, the body responsible for an institution of a description listed in column 1 of an entry in Table 1 is the body listed in column 2 of the same entry.
(2)    In Table 1—
  “governing body”, in relation to a maintained school, means the body corporate constituted in accordance with section 19 of the Education Act 2002 (c. 32);
  “independent school” has the meaning given in section 463 of the Education Act 1996 (c. 56);
  “local education authority” has the meaning given in section 22(8) of the School Standards and Framework Act 1998 (c. 31);
  “maintained school” has the meaning given in section 20(7) of the School Standards and Framework Act 1998 (c. 31);
  “maintained nursery school” has the meaning given in section 22(9) of the School Standard and Framework Act 1998 (c. 31);
  “proprietor” has the meaning given in section 579 of the Education Act 1996 (c. 56); and
  “pupil referral unit” has the meaning given in section 19(2) of the Education Act 1996 (c. 56).

TABLE 1
ENGLAND AND WALES: SCHOOLS
Educational establishmentResponsible body
Maintained school or maintained nursery schoolThe local education authority or the governing body, according to which of them has the function (in any particular case) of making the decisions or arrangements mentioned in paragraph 19(1) of this Part of this Schedule
Pupil referral unitThe local education authority
Independent schoolThe proprietor
Special school that is not maintained by a local education authority but that is approved by the Secretary of State, or by the National Assembly for Wales, under section 342 of the Education Act 1996The proprietor
Schools in Scotland

21 (1) In relation to Scotland, the body responsible for an institution of a description listed in column 1 of an entry in Table 2 is the body listed in column 2 of the same entry.
(2)    In Table 2, “board of management”, “education authority”, “independent school”, “managers”, “proprietor”, “self governing school” and “school” have the meaning given in section 135(1) of the Education (Scotland) Act 1980 (c. 44).

TABLE 2
SCOTLAND: SCHOOLS
Educational establishmentResponsible body
School managed by an education authorityThe education authority
Independent schoolThe proprietor
Self-governing schoolThe board of management
School in respect of which the managers are for the time being receiving grants under section 73(c) or (d) of the Education (Scotland) Act 1980The managers of the school
Further and higher education institutions in England and Wales

22 (1) In relation to England and Wales, the body responsible for an institution of a description listed in column 1 of an entry in Table 3 is the body listed in column 2 of the same entry.
(2)    This paragraph is to be read in with section 91 of the Further and Higher Education Act 1992 (c. 37).
(3)    In Table 3, “governing body” has the meaning given in section 90 of the Further and Higher Education Act 1992 (c. 13).
(4)    The Secretary of State may not make an order designating an institution of a kind referred to in column 1 of the final entry in Table 3 unless he is satisfied that the institution is wholly or partly funded from public funds.

TABLE 3
ENGLAND AND WALES: FURTHER AND HIGHER EDUCATION INSTITUTIONS
Educational establishmentResponsible body
Institution within the further education sectorThe governing body
UniversityThe governing body
Institution, other than a university, within the higher education sectorThe governing body
Institution designated in an order made by the Secretary of StateThe body specified in the order as the responsible body
Further and higher education institutions in Scotland

23 (1) In relation to Scotland, the body responsible for an institution of a description listed in column 1 of an entry in Table 4 is the body listed in column 2 of the same entry.
(2)    In Table 4—
  “board of management” has the meaning given in section 36(1) of the Further and Higher Education (Scotland) Act 1992 (c. 37);
  “central institution”, “education authority” and “managers” have the meaning given in section 135(1) of the Education (Scotland) Act 1980 (c.
44);
  “governing body” has the meaning given in section 56(1) of the Further and Higher Education (Scotland) Act 1992 (c. 37).
(3)    Scottish Ministers may not make an order designating an institution of a kind referred to in column 1 of the final entry in Table 4 unless satisfied that the institution is wholly or partly funded from public funds.

TABLE 4
SCOTLAND: FURTHER AND HIGHER EDUCATION INSTITUTIONS
Educational establishmentResponsible body
Designated institution within the meaning of Part 2 of the Further and Higher Education (Scotland) Act 1992The governing body
UniversityThe governing body
College of Further Education with a board of managementThe board of management
College of Further Education maintained by an education authority in the exercise of their further education functions in providing courses of further education (within the meaning of section 1(5)(b)(ii) of the Education (Scotland) Act 1980)The education authority
Central institutionThe governing body
School in respect of which the managers are for the time being receiving grants under section 73(c) or (d) of the Education (Scotland) Act 1980The managers of the school
Institution designated in an order made by Scottish MinistersThe body specified in the order as theresponsible body
Exclusion for selection by schools in connection with their admission arrangements

24 (1) There is excluded from the protected area of activity specified in section 6(1)(c) any arrangements restricting the admission of pupils to a school where those arrangements constitute a genuine, determining and proportionate means of achieving the objective of a permitted form of selection.
(2)    In relation to England, “permitted form of selection” means—
(a)    if the school is a maintained school that is not designated as a grammar school under section 104 of the School Standards and Framework Act 1998 (c. 31), any form of selection by ability or aptitude mentioned in section 99(2) or (4) of that Act;
(b)    if the school is a maintained school which is so designated, any of its selective admission arrangements;
(c)    if the school is an independent school, any arrangements which make provision for all or any of its pupils to be selected by reference to general or special ability or aptitude, with a view to admitting only pupils of high ability or aptitude.
(3)    In relation to Scotland, “permitted form of selection” means—
(a)    if the school is managed by an education authority, such arrangements as have been approved by Scottish Ministers for the selection of pupils for admission;
(b)    if the school is an independent school or a self-governing school—
(i)    any arrangements which make provision for any or all of its pupils to be selected by reference to general or special ability or aptitude, with a view to admitting only pupils of high ability or aptitude;
(ii)    any arrangements for pupils to be selected by reference to age which is permitted under the Education (Scotland) Act 1980 (c. 44);
(iii)    any other selective admission arrangements of a description approved by Scottish Ministers.
(4)    “Pupil”—
(a)    in relation to England and Wales, has the meaning given in section 3 of the Education Act 1996 (c. 56);
(b)    in relation to Scotland, has the meaning given in section 135(1) of the Education (Scotland) Act 1980 (c. 44).
(5)    Any term which is used in sub-paragraph (2) or (3) and which is defined in (respectively) paragraph 20 or 21, has the same meaning in this paragraph as it has in that paragraph.
Exclusion for selection by further or higher education institutions

25        There is excluded from the protected area of activity specified in section 6(1)(c) any arrangements restricting the admission of persons attending an educational establishment of a kind listed in Table 3 or 4 in paragraph 22 or 23 where those arrangements constitute a genuine, determining and proportionate means of achieving the objective of maintaining—
(a)    academic standards in such an establishment; or
(b)    standards of any other prescribed kind in such an establishment.
Exclusion for single-sex establishments

26 (1) There is excluded from the protected area of activity specified in section 6(1)(c) any arrangements restricting the admission of pupils to an educational establishment where the establishment—
(a)    admits pupils of one sex only; or
(b)    would be taken to admit pupils of one sex only, if there were disregarded pupils of the opposite sex—
(i)    whose admission is exceptional; or
(ii)    whose numbers are comparatively small and whose admission is confined to particular courses of instruction or teaching classes.
(2)    There is also excluded from the protected area of activity specified in section 6(1)(c) any arrangements restricting the admission of boarders or the provision of boarding facilities at a school falling within sub-paragraph (3).
(3)    A school falls within this sub-paragraph if—
(a)    it is not an establishment to which sub-paragraph (1) applies;
(b)    it has some pupils as boarders and others as non-boarders; and
(c)    it admits as boarders pupils of one sex only (or would be taken to admit as boarders pupils of one sex only, if there were disregarded boarders of the opposite sex whose numbers are comparatively small).
(4)    Where sub-paragraph (1)(b) applies, the fact that pupils of one sex are confined to particular courses of instruction or teaching classes is not to be taken to amount to discrimination.
(5)    But the exclusions in sub-paragraph (1) and (2) do not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
(6)    “Pupil”, in relation to an establishment in England and Wales, includes any person who receives education at that establishment.
Exclusion for single-sex establishments turning co-educational

27 (1) There is excluded from the protected area of activity specified in section 6(1)(c) any refusal or deliberate omission to accept an application for the admission of a pupil to—
(a)    an educational establishment which has determined to alter its admissions arrangements so that it will cease to fall within paragraph 26(1)(a) or (b); or
(b)    a school which has determined to alter its admissions arrangements so that it will cease to fall within paragraph 26(3).
(2)    But the exclusion in sub-paragraph (1) does not apply—
(a)    unless, in accordance with such requirements as may be prescribed, the educational establishment or school has made an application for a transitional exemption order to such person as may be prescribed and the application has not been determined; or
(b)    unless the prescribed person has granted such an application and made an order which has neither expired nor been revoked and unless all conditions specified in the order have been complied with.
(3)    “Pupil”, in relation to an establishment in England and Wales, includes any person who receives education at that establishment.
Exclusion for physical training

28 (1) There is excluded from the protected area of activity specified in section 6(1)(c) any arrangements restricting access to any course in physical education which is a further education course or, in England and Wales, a higher education course within the meaning of the Education Reform Act 1988 (c. 40).
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
(3)    “Further education”—
(a)    in England and Wales, has the meaning given in section 2 of the Education Act 1996 (c. 56); and
(b)    in Scotland, has the meaning given in section 135(1) of the Education (Scotland) Act (c. 44).
Exclusion for religious education or worship

29 (1) There is excluded from the protected area of activity specified in section 6(1)(c) any arrangements for acts of worship, or for the provision of religious education, which are expressly required or permitted under—
(a)    section 44 or 45 of the Further and Higher Education Act 1992 (c. 13) (religious education or worship);
(b)    section 69 or 70 of the School Standards and Framework Act 1998 (c. 31) (religious education or worship);
(c)    any equivalent arrangements having effect in Scotland.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons to any prohibited ground other than religion.

PART 5

PROVISION OF GOODS, FACILITIES AND SERVICES

Scope of protected area of activity

30 (1) In determining the scope of the protected area of activity specified in section 6(1)(d), the reference in that provision to the provision of goods, facilities or services includes the determination of terms on which goods, facilities or services are to be provided.
(2)    The following are examples of services and facilities falling within section 6(1)(d)—
(a)    access to and use of any place which members of the public or a section of the public are permitted to enter;
(b)    access to and use of means of communication;
(c)    access to and use of information services;
(d)    accommodation in a hotel, boarding house or other similar establishment;
(e)    facilities by way of banking or insurance;
(f)    facilities for grants, loans, credit or finance;
(g)    facilities for education which are offered by a person other than a body responsible for an educational establishment (within the meaning of paragraph 19(3));
(h)    facilities for entertainment, recreation, training or refreshment;
(i)    facilities for transport and travel;
(j)    facilities for social, cultural or recreation activities;
(k)    the services of any profession or occupation;
(l)    the services of any agency providing health care services or social care services;
(m)    the services of any local or other public authority.
(3)    Nothing in this paragraph is to be taken to extend to the provision of goods, facilities or services outside the European Community.
Exclusion for carers etc

31        There is excluded from the protected area of activity specified in section 6(1)(d) any act done by a person as a participant in arrangements under which he (whether for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons or persons requiring a special degree of care and attention. Exclusion for hospitals etc restricted to persons of the same sex

32 (1) There is excluded from the protected area of activity specified in section 6(1)(d) the provision at any place of facilities or services restricted to persons of the same sex if the place is, or is part of, a hospital or other establishment for persons requiring special care, supervision or attention.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
Exclusion for places used for purposes of organised religion

33 (1) There is excluded from the protected area of activity specified in section 6(1)(d) the provision at any place of facilities or services restricted to persons of the same sex if—
(a)    the place is occupied or used for the purposes of an organised religion (whether or not the occupation or use is permanent); and
(b)    the facilities or services are restricted to persons of that sex so as to comply with the doctrines of that religion or to avoid offending the religious susceptibilities of a significant number of its followers.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
Exclusion for restrictions avoiding invasion of personal privacy

34 (1) There is excluded from the protected area of activity specified in section 6(1)(d) the provision at any place of facilities or services restricted to persons of the same sex if the facilities or services are provided for, or are likely to be used by, two or more persons at the same time and—
(a)    the facilities or services are such, or those persons are such, that users of one sex are likely to suffer serious embarrassment at the presence of persons of the opposite sex; or
(b)    the facilities or services are such that a user is likely to be in a state of undress and might reasonably object to the presence of persons of the other sex.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
Exclusion for insurance

35 (1) There is excluded from the protected area of activity specified in section 6(1)(d) any act by any person in the provision of an annuity, life assurance policy, accident insurance policy or similar matter involving assessment of risk if the act is—
(a)    carried out by reference to actuarial or other data from a source on which it was reasonable to rely; and
(b)    reasonable, having regard to the data and any other relevant factors.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex or age.
Exclusion for transactions with persons without capacity to act

36 (1) There is excluded from the protected area of activity specified in section 6(1)(d) any act done by any person (“A”) in relation to the provision of (or failure to provide) any goods, services or facilities to another person (“B”), if A can show that at the time of the transaction it appeared to him, on reasonable grounds, that B was unable to enter into an enforceable agreement, or give his informed consent, in connection with that provision or failure.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than disability or age.
(3)    Regulations may make provision for sub-paragraph (1) not to apply in prescribed circumstances where—
(a)    a person is acting for B under a power of attorney;
(b)    functions conferred by or under Part 7 of the Mental Health Act 1983 are exercisable in relation to B's property or affairs; or
(c)    functions conferred by or under Part 4 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) are exercisable in relation to B's property or affairs.
Exclusion for transactions affecting disabled persons

37 (1) There is excluded from the protected area of activity specified in section 6(1)(d)—
(a)    any refusal by any person to provide any goods, facilities or services to a disabled person (or any deliberate omission by him to do so), where that person shows, on reasonable grounds, that he would otherwise be unable to provide the goods, facilities or services to members of the public; or
(b)    any terms applying to the provision to a disabled person of any goods, facilities or services which the provider shows, on reasonable grounds, reflects the greater costs to him in providing the goods, facilities or services to a disabled person.
(2)    There is also excluded from the protected area of activity specified in section 6(1)(d) any variation in—
(a)    the standard of the service in providing any goods, facilities or services to a disabled person;
(b)    the manner of their provision;
(c)    any applicable terms; or
(d)    which the provider shows, on reasonable grounds, is necessary in order for him to provide the goods, facilities or services to the disabled person or to other members of the public.
(3)    But the exclusions in sub-paragraphs (1) and (2) do not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than disability.

PART 6

DISPOSAL AND MANAGEMENT OF PREMISES

Scope of protected area of activity and interpretation

38 (1) In determining the scope of the protected area of activity specified in section 6(1)(e), the reference in that provision to a person who has power to dispose of premises includes—
(a)    in the case of premises which are comprised in (or, in Scotland, the subject of) a tenancy, a person whose licence or consent is required for the disposal;
(b)    a person who, for the purposes of allocating premises, operates any list of persons in need of premises.
(2)    The scope of the protected area of activity specified in section 6(1)(e) also includes tenancies created before as well as tenancies created after the passing of this Act.
(3)    In this Part of this Schedule—
  “dispose”, in relation to premises, includes—
(a)    determining the terms on which premises are to be disposed of;
(b)    granting or refusing to grant a right to occupy the premises or terminating such a right; and
(c)    where premises are comprised in (or, in Scotland, the subject of) a tenancy—
(i)    assigning the tenancy;
(ii)    sub-letting or parting with possession of the premises or any part of the premises; and
(iii)    terminating the tenancy;
and references to disposal are to be construed accordingly; and
  “management”, in relation to premises, includes subjecting any person occupying the premises to any detriment; and
  “tenancy” means a tenancy created—
(a)    by a lease or sub-lease;
(b)    by an agreement for a lease or sub-lease;
(c)    by a tenancy agreement; or
(d)    in pursuance of any enactment.
Exclusion for owner-occupiers

39 (1) There is excluded from the protected area of activity specified in section 6(1)(e) the disposal by any person of premises in which he owns estate or interest and which he wholly occupies unless, for the purpose of disposing of the premises, he—
(a)    uses the services of an estate agent; or
(b)    publishes an advertisement or causes an advertisement to be published.
(2)    “Estate agent” means any person engaged in estate agency work within the meaning of section 1(1) of the Estate Agents Act 1979.
Exclusion for small dwellings

40 (1) There is excluded from the protected area of activity specified in section 6(1)(e) the disposal or management of any premises where—
(a)    the person with power to dispose of the premises, or a related person, resides on the premises and intends to continue to reside there; and
(b)    the conditions specified in sub-paragraph (2) are satisfied.
(2)    The conditions are that—
(a)    the person who is resident shares accommodation on the premises with persons who reside on the premises and are not members of the household;
(b)    the shared accommodation is not storage accommodation or a means of access; and
(c)    the premises fall within sub-paragraph (3) or (4).
(3)    Premises fall within this sub-paragraph if—
(a)    only the person who is resident and members of his household reside in the accommodation occupied by him;
(b)    the premises comprise, in addition to such accommodation, residential accommodation for at least one other household;
(c)    the residential accommodation for each other household is let, or available for letting, on a separate tenancy or similar agreement; and
(d)    there are not normally more than two such other households.
(4)    Premises fall within this sub-paragraph if there is not normally residential accommodation on the premises for more than six persons in addition to the person referred to in sub-paragraph (2)(a) and any members of his household.
(5)    “Related person”, in relation to the person with power to dispose of the premises, means—
(a)    that person's spouse;
(b)    a person (whether or not of the opposite sex) whose relationship with that person is that of an unmarried partner in a stable relationship;
(c)    that person's parent, brother, sister, child, grandparent or grandchild.

PART 7

MANAGEMENT OF MEMBERS CLUBS

Scope of protected area of activity and interpretation

41 (1) In determining the scope of the protected area of activity specified in section 6(1)(f), the reference in that provision to the management of a members club is to the affording of opportunities, or the making of any decisions or arrangements, which relate to—
(a)    admission or exclusion as a member or associate of the club;
(b)    rights of participation by members or associates in the governance of the club;
(c)    access by any person (including persons who are not members or associates) to any benefits, facilities or services provided by the club;
(d)    termination of any benefit referred to in any of paragraphs (a) to (c); or
(e)    subjecting any person referred to in any of those paragraphs to a detriment.
(2)    For the purposes of sub-paragraph (1), no regard is to be had as to how the members club is described, whether it is a body corporate or an unincorporated association or body, or whether its activities are carried on for profit.
(3)    In this Part of this Schedule “members club” means any association of 25 or more persons which—
(a)    regulates admission to membership through its constitution; and
(b)    is not an association of a kind described in paragraph 10(1)(d).
(4)    In this section—
  “member”, in relation to a members club, means any person who belongs to the club by virtue of his admission to any kind of membership provided by its constitution;
  “associate”, in relation to a members club, means any person (other than a member) who has under the constitution of the club some or all of the rights enjoyed by members or who would have such rights apart from any provision in its constitution authorising the refusal of those rights in particular cases.
Exclusion for members clubs for racial and religious groups

42 (1) There is excluded from the protected area of activity specified in section 6(1)(f) the management of any members club that is carried on otherwise than for profit, if the principal purpose of the club is to enable the benefits of membership to be enjoyed by persons of a particular group defined by reference to race, nationality or ethnic or national origins (but not colour).
(2)    There is also excluded from the protected area of activity specified in section 6(1)(f) the management of any members club carried on otherwise than for profit, the principal purpose of which is to enable the benefits of membership to be enjoyed by persons of a particular group defined by reference to religion or belief.
(3)    In determining the principal purpose of a members club, regard is to be had to—
(a)    the extent to which the affairs of the club are conducted in such a way that the persons primarily enjoying the benefits of membership are persons of the particular group concerned;
(b)    the essential character of the club;
(c)    any other relevant circumstances.
(4)    But the exclusions in sub-paragraphs (1) and (2) do not apply to exclude anything done for a reason or reasons relating to—
(a)    in the case of sub-paragraph (1), any prohibited ground other than race, nationality or ethnic or national origins (but not colour);
(b)    in the case of sub-paragraph (2), any prohibited ground other than religion or belief.
Exclusion for single-sex members clubs

43 (1) There is excluded from the protected area of activity specified in section 6(1)(f) the management of any members club the principal purpose of which is to enable the benefits of membership to be enjoyed either wholly by men or wholly by women.
(2)    There is also excluded from the protected area of activity specified in section 6(1)(f) the management of any members club carried on otherwise than for profit, the principal purpose of which is to enable the benefits of membership to be enjoyed by persons of one sex.
(3)    In determining the principal purpose of a members club, regard is to be had to—
(a)    in a case falling within sub-paragraph (1), the extent to which the affairs of the club are conducted in such a way that the persons enjoying the benefits of membership are wholly men or wholly women;
(b)    in a case falling within sub-paragraph (2), the extent to which the affairs of the club are conducted in such a way that the persons primarily enjoying the benefits of membership are of the sex in question;
(c)    the essential character of the club; and
(d)    any other relevant circumstances.
(4)    But the exclusions in sub-paragraphs (1) and (2) do not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
Exclusion for single-sex sporting events or competitions

44 (1) There is excluded from the protected area of activity specified in section 6(1)(f) the organisation by any members club of any sporting event or competition—
(a)    which is solely for the benefit of persons of one sex, provided that—
(i)    an event or competition of like quality is organised or promoted solely for the benefit of persons of the opposite sex; or
(ii)    the club determines on reasonable grounds that there is no demand from persons of the opposite sex who are members of the club for such an event or competition;
(b)    which is solely for the benefit of persons of one sex but is of lesser quality than one organised solely for the benefit of persons of the opposite sex, provided that the club has determined on reasonable grounds that the likely demand from the persons for whose benefit the lesser event or competition is arranged is such that a lesser event or competition will satisfy it; or
(c)    where, in relation to two like events or competitions organised for men and women respectively, the club offers different levels of prize money or other reward according to whether the recipients are men or women, provided that prize money or other reward is of a value in excess of £1,000.
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.

PART 8

EXCLUSIONS APPLYING TO TWO OR MORE AREAS OF ACTIVITY

Exclusion for acts safeguarding national security

45        There is excluded from the protected areas of activity specified in section 6(1) any act done for the purpose of safeguarding national security if the doing of the act is justified by that purpose. Exclusion for positive action

46 (1) There is excluded from the protected areas of activity specified in section 6(1) any positive action which is taken for the benefit of one or more relevant groups.
(2)    “Relevant group” means—
(a)    any group of persons identified by reference to a particular age group into which they fall;
(b)    any group of persons identified by reference to their colour, race, nationality or ethnic or national origins;
(c)    any group of persons identified by reference to a particular disability they have or have had;
(d)    any group of persons identified by reference to their family status;
(e)    persons generally who have undergone a gender reassignment;
(f)    any group of persons identified by reference to their marital status;
(g)    pregnant women generally;
(h)    any group of persons identified by reference to their religion or belief;
(i)    men generally or women generally;
(j)    any group of persons identified by reference to their sexual orientation.
(3)    Positive action in any protected area of activity is—
(a)    any step concerning the adoption or maintenance of measures providing specific advantages to underrepresented members of a relevant group in order to facilitate their access to any opportunities or benefits generally available in the protected area of activity in question; and
(b)    any step concerning the adoption or maintenance of measures providing specific advantages to members of a relevant group in order to compensate them for any disadvantage—
(i)    which is caused by their membership of the group in question; and
(ii)    which has, or may have, an adverse effect on their health, welfare, or education or on their social or economic opportunities.
(4)    Examples of positive action in the protected area of activity specified in section 6(1)(b) are—
(a)    any step concerning the adoption or maintenance of practices that encourage equitable participation in employment by underrepresented members of any relevant group;
(b)    any step concerning the modification or abandonment of practices that discourage, or may discourage, participation in employment by underrepresented members of a relevant group;
(c)    any step concerning the adoption or maintenance of measures providing specific advantages to underrepresented members of a relevant group in order to make it easier for them to take up or pursue a profession or occupation;
(d)    any step concerning the adoption or maintenance of measures providing specific advantages to underrepresented members of a relevant group in order to compensate them for any disadvantage that is caused by their membership of the group and which has, or may have, an adverse effect on their capacity to take up or pursue a profession or occupation;
(e)    any step concerning the adoption or maintenance of measures to create or maintain provisions or facilities with a view to safeguarding or promoting the full integration of underrepresented members of a relevant group within the working environment.
(5)    An example of positive action in the protected area of activity specified in section 6(1)(c) is any step to secure or improve access to facilities or services by underrepresented members of a relevant group with a view to meeting the special needs of members of that group with regard to their education, training or welfare or any ancillary benefits.
Exclusion for positive action required or permitted by Part 3

47        There is excluded from the protected areas of activity specified in section 6(1) any act which is taken in pursuance of any duty imposed by Part 3 of this Act and which—
(a)    is, or may be, more advantageous to persons to whom that duty is owed than to those to whom it is not; but
(b)    is specifically required or permitted by any provision in or made under Part 3 of this Act.
Exclusion for positive action for equal opportunities required under devolved powers

48        There is excluded from the protected areas of activity specified in section 6(1) any act which is taken in pursuance of any duty imposed for purposes specified in the exception specified in Head L.2 of Schedule 5 (equal opportunities) to the Scotland Act (c. 46). Exclusion for acts avoiding risks to health and safety

49 (1) There is excluded from the protected areas of activity specified in section 6(1) any act done in relation to a disabled person if the act is necessary in order not to endanger the health or safety of any person (including the disabled person).
(2)    But the exclusion in sub-paragraph (1) does not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than disability.
Exclusion for communal accommodation

50 (1) There is excluded from the protected area of activity specified in section 6(1) any act in connection with the admission of persons to communal accommodation if the accommodation is managed in a way which, given the exigencies of the situation, comes as near as may be to fair and equitable treatment of men and women.
(2)    There is also excluded from the protected area of activity specified in section 6(1) the provision of any benefit, facility or service if—
(a)    the benefit, facility or service cannot properly and effectively be provided except for those using communal accommodation; and
(b)    in the relevant circumstances, the women or, as the case may be, the man could lawfully be refused the use of the accommodation by virtue of sub-paragraph (1).
(3)    But the exclusions in sub-paragraph (1) and (2) do not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
(4)    In addition, in a case falling within the protected area of activity specified in section 6(1)(b), the exclusions in sub-paragraph (1) and (2) do not apply unless such arrangements as are reasonably practicable are made to compensate for the detriment caused by the act.
(5)    In applying sub-paragraph (1) regard is to be had (among other things)—
(a)    to whether and how far it is reasonable to expect that the accommodation should be altered or extended, or that further alternative accommodation should be provided; and
(b)    to the frequency of the demand or need for use of the accommodation by men as compared with women.
(6)    In considering under sub-paragraph (2)(b) whether the use of communal accommodation could lawfully be refused, it is to be assumed that the requirements of sub-paragraph (3) have been complied with.
(7)    “Communal accommodation”—
(a)    means residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy or decency should be used by persons of the same sex only (but which may include sleeping accommodation for persons of the opposite sex or some ordinary accommodation); and
(b)    includes residential accommodation all or part of which should be used by persons of the same sex only on account of the nature of the sanitary facilities serving the accommodation.
Exclusion for participation in sport

51 (1) There is excluded from the protected areas of activity specified in section 6(1) any act which relates to participation in any sport, game or other activity of a competitive nature where—
(a)    the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man; and
(b)    as a result, participation as a competitor in events involving that activity is confined to competitors of one sex.
(2)    There is also excluded from the protected areas of activity specified in section 6(1) any act which relates to participation in any sport, game or other activity of a competitive nature where—
(a)    the act is the selection of one or more persons to represent a country, place or area (or any related association) in any sport or game on the basis of—
(i)    nationality;
(ii)    place of birth; or
(iii)    length of time for which a person has been resident in a particular area or place; or
(b)    the act is done on the basis of the matters referred to in paragraph (a)(i) to (iii) and is in pursuance of the rules of any competition so far as they relate to eligibility to compete in any sport or game.
(3)    But the exclusions in sub-paragraphs (1) and (2) do not apply to exclude anything done for a reason or reasons relating to—
(a)    in the case of sub-paragraph (1), any prohibited ground other than sex;
(b)    in the case of sub-paragraph (2), any prohibited ground other than national origin.
Exclusion for political parties

52 (1) There is excluded from the protected areas of activity specified in section 6(1) any special provision for persons of one sex only in the constitution, organisation or administration of a registered political party or any act done in connection with such provision.
(2)    There is excluded from the protected areas of activity specified in section 6(1) any act done in connection with arrangements made by a registered political party which—
(a)    regulate the selection of the party's candidates at a relevant election; and
(b)    are adopted for the purpose of reducing inequality in the numbers of men and women elected as candidates of the party to be members of the body concerned.
(3)    But the exclusions in sub-paragraphs (1) and (2) do not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex.
(4)    “Relevant elections” means—
(a)    parliamentary elections;
(b)    elections to the European Parliament;
(c)    elections to the Scottish Parliament;
(d)    elections to the National Assembly for Wales; or
(e)    local government elections within the meaning of section 61, 203, or 204 of the Representation of the People Act 1983 (c. 2) (excluding any election of the Mayor of London).
(5)    “Registered political party” means a party registered in the Great Britain register under Part 2 of the Political Parties, Elections and Referendums Act 2000 (c. 41).
(6)    The exclusion in sub-paragraph (2) expires at the end of 2015 unless an order is made under sub-paragraph (7).
(7)    At any time before the exclusion in sub-paragraph (2) expires, the Secretary of State may by order provide that sub-paragraph (6) is to have effect with the substitution of a later time for the time specified there (whether originally or by virtue of a previous order).
Exclusion for acts protecting women

53     (1)    There is excluded from the protected areas of activity specified in section 6(1) any act done in relation to a woman which is necessary in order to comply with any provision of primary legislation or subordinate legislation which has effect for the purpose of protecting women as regards pregnancy or other circumstances giving rise to risks specifically affecting women (whether the provision relates only to such protection or to the protection of any other class of persons as well).
(2)    There is also excluded from section 6(1) any act done in relation to a woman—
(a)    which is necessary in order to comply with a relevant statutory provision (within the meaning of Part 1 of the Health and Safety at work Act 1974 (c. 37)); and
(b)    which is done for the purpose of protecting a particular woman, or class of women, as regards pregnancy or other circumstances giving rise to risks specifically affecting women.
(3)    But the exclusions in sub-paragraphs (1) and (2) do not apply to exclude anything done for a reason or reasons relating to any prohibited ground other than sex or pregnancy.
 

 
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