Equality Bill [HL]—continued
        House of Lords

 

SCHEDULE 3

Sections 34(4), 35(3) and 36(7)

DUTY TO FACILITATE ACCESS BY DISABLED PERSONS

PART 1

WORK RELATED MATTERS: RESPONSIBLE BODIES AND QUALIFYING PERSONS

Interpretation

1         In this Schedule—
  “advocate” means a member of the Faculty of Advocates practising as such;
  “barrister's clerk” includes any person carrying out any of the functions of a barrister's clerk;
  “local authority” means—
(a)    in relation to England, a county council, a district council, a London Borough Council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly;
(b)    in relation to Wales, a county council or a county borough council;
(c)    in relation to Scotland, a council constituted under section 2 of the Local Government etc (Scotland) Act 1994 (c. 39);
  “professional or occupation qualification” means an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for (or facilitates engagement in) a particular profession or occupation;
  “pupil”—
(a)    in relation to England and Wales, has the meaning commonly associated with its use in the context of a set of barristers' chambers practising in independent practice;
(b)    in relation to Scotland, has the meaning commonly associated with its use in the context of a person training to be an advocate;
  “partner”, in relation to a limited partnership formed under the Limited Partnerships Act 1907, means a general partner;
  “pupillage”, “tenancy” and “tenant” have the meaning commonly associated with its use in the context of a set of barristers' chambers practising in independent practice;
  “trade organisation” means—
(a)    an organisation of workers;
(b)    an organisation of employers;
(c)    any other organisation whose members carry on a particular profession or occupation for the purposes of which the organisation exists; and
  “work placement” means practical work experience undertaken for a limited period for the purposes of a person's vocational training.
Responsible persons subject to duty and qualifying persons benefiting from it

2 (1) For the purposes of the duty imposed by section 34—
(a)    any person who is specified in an entry in column 1 of Table 1 of this Schedule is a responsible person and, accordingly, is subject to that duty;
(b)    any person who is specified in column 2 of the same entry is a qualifying person in relation to that responsible person.
(2)    The Secretary of State may by order amend Table 1 by adding or removing responsible persons or qualifying persons, or by modifying any entry.

TABLE 1
Responsible personQualifying person
A person who employs an individual or individuals 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)
(a) An applicant for employment under such a contract
(b) An individual who notifies the firm that he may be such an applicant
(c) An individual who is employed under such a contract
A person (“A”) who employs individuals and who, under a contract made with another person (“B”), supplies such individuals to do work (“contract work”) for BAn individual who is supplied by A to carry out the contract work
A partnership or any persons proposing to form themselves into a partnership
(a) A candidate for the position of partner
(b) A person who notifies the firm that he may be such a candidate
(c) A partner
A person who is a barrister, a barrister's clerk or a person carrying out any of the functions of a barrister's clerk
(a) A pupil
(b) An applicant for pupillage or tenancy
(c) A tenant
A person who is an advocate
(a) A pupil
(b) A person who notifies the advocate that he may apply to be taken as a pupil
(c) An advocate
A person who provides a work placement to a person whom he does not employ
(a) A person undertaking a work placement with a placement provider
(b) An applicant for the work placement
(c) A person who notifies a person providing the placement that he may be such an applicant
An authority or body which can confer, renew or withdraw a professional or occupational qualification
(a) A person who holds a professional or occupational qualification conferred by the authority or body
(b) A person who is an applicant for the qualification
(c) A person who notifies the authority or body that he may be such an applicant
A trade organiser
(a) A member of the organisation
(b) An applicant for membership
(c) A person who notifies the organisation that he may be such an applicant
A local authorityAny person who is an elected councillor
The corporate officer of the House of Commons
(a) Any person who is a relevant member of the House of Commons Staff for the purposes of section 195 of the Employment Rights Act 1996 (c. 18)
(b) An applicant to be appointed as such
(c) A person who notifies the organisation that he may be such an applicant
A chief officer of police or a policy authority (to be construed in accordance with paragraph 3 of this Part of this Schedule)
(a) A constable
(b) A police cadet
(c) A probationer constable
(d) An applicant for any appointment to the offices specified in paragraph (a), (b) or (c)
(e) A person who notifies the Chief Officer that he may be such an applicant
3 (1) This paragraph applies for the purposes of the entry in Table 1 which, in column 1, commences “A chief officer of police”.
(2)    The holding of office of constable is to be treated as employment—
(a)    by the chief officer of police as respects any act done by him in relation to a constable or that office;
(b)    by the police authority as respects any act done by them in relation to a constable or that office.
(3)    Sub-paragraph (2) applies to a police cadet and probationer constable (and appointment as a police cadet or probationer constable) as it applies to a constable and the office of constable.
(4)    Sub-paragraph (2) applies in relation to the National Criminal Intelligence Service (“NCIS”) and the National Crime Squad (“the NCS”) as it applies in relation to a police force but—
(a)    as if any reference to the chief officer of police were to the Director General of NCIS or the NCS (as the case may be);
(b)    as if any reference to the police authority were to the Service Authority for the National Criminal Intelligence Service or the Service Authority for the National Criminal Squad (as the case may be).
(5)    In this paragraph—
  “chief officer of police”—
(a)    in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as it has in the Police Act;
(b)    in relation to any other person or appointment, means the office who has the direction and control of the body of constable or cadets in question;
  “police authority”—
(a)    means in regulation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as it has in the Police Act;
(b)    in relation to any other person or appointment, means the authority by whom the person in question is (or on appointment would be) paid; and
  “the Police Act” means, for England and Wales, the Police Act 1996 (c. 16) or, for Scotland, the Police (Scotland) Act 1967 (c. 77).

PART 2

WORK-RELATED MATTERS: OTHER PROVISIONS

4         In considering whether it is reasonable for a responsible body to have to take a particular step in order to comply with its duty under section 34(2), a responsible person must have regard to any relevant provisions of a code of practice issued by the Commission.

5         In determining whether a step is reasonable for the purposes of section 34(2), regard is to be had to whether taking the step would place a disproportionate burden on the responsible person and, in particular, to—
(a)    the extent to which taking the step would remove the disadvantage described in section 34(1);
(b)    the extent to which it is practicable to take the step;
(c)    the financial and other costs which would be incurred in taking the step and the extent to which it would disrupt any of the responsible person's activities;
(d)    the extent of the responsible person's financial and other resources;
(e)    the availability to the responsible person of financial or other assistance with respect to the taking of the step;
(f)    the adequacy of alternative arrangements made by the responsible person which would achieve a substantially similar outcome whilst avoiding the disadvantage described in section 34(1).
6 (1) For the purposes of section 34, regulations may make provision as to—
(a)    circumstances in which a provision, criterion or practice is to be treated as giving rise to the effect described in section 34(1);
(b)    circumstances in which a provision, criterion or practice is to be treated as not giving rise to such an effect;
(c)    circumstances in which it is reasonable for a person to have to take steps of a description specified in the regulations;
(d)    circumstances in which it is not reasonable for a person to have to take steps of a description specified in the regulations;
(e)    steps which it is always reasonable for a person to take;
(f)    steps which it is never reasonable for a person to take;
(g)    things which are, or are not, to be treated as physical features of premises.
(2)    Before making regulations under sub-paragraph (1) the Secretary of State must consult the Commission and such other persons as he considers appropriate.

7         The following are examples of steps that an employer may have to take in relation to a disabled worker in order to comply with section 34—
(a)    making adjustment to premises;
(b)    allocating some of the worker's duties to another person;
(c)    transferring him to fill an existing vacancy;
(d)    altering his working hours;
(e)    assigning him to a different place of work;
(f)    allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g)    giving him, or arranging for him to be given, training;
(h)    acquiring or modifying equipment;
(i)    modifying instructions or reference manuals;
(j)    modifying procedures for testing or assessment;
(k)    providing a reader or interpreter;
(l)    providing supervision.

PART 3

EDUCATION MATTERS

8         In this Part of this Schedule, references to a responsible body (which do not specify the nature of the educational establishment concerned) are to any of the bodies defined in section 35(5).

9         In considering whether it is reasonable for a responsible body to have to take a particular step in order to comply with its duty under section 35, a responsible body must have regard to—
(a)    any relevant provisions of a code of practice issued by the Commission; and
(b)    any accessibility strategies and plans prepared under section 28D of the Disability Discrimination Act 1995 (c. 50) which relate to the educational establishment for which they are responsible.

10        Section 35(1) does not require the body responsible for a school to—
(a)    remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or
(b)    provide auxiliary aids or services.
11 (1) In determining, for the purposes of section 35, whether it is reasonable for any responsible body to have to take a particular step in relation to a person by (or in respect of) whom a confidentiality request has been made, regard is to be had to the extent to which taking the step in question is consistent with compliance with that request.
(2)    “Confidentiality request”—
(a)    in relation to a school, means a request that asks for the nature, or asks for the existence, of a disabled person's disability to be treated as confidential and which satisfies either of the following conditions—
(i)    it is made by that person's parent; or
(ii)    it is made by that person himself and the responsible body reasonably believes that he has sufficient understanding of the nature of the request and its effect;
(b)    in relation to a further or higher education institution, means a request made by a disabled person which asks for the nature, or asks for the existence, of his disability to be treated as confidential.
12 (1) For the purposes of section 35, regulations may make provision—
(a)    as to circumstances in which it is reasonable for a responsible body to have to take steps of a prescribed description;
(b)    as to steps which it is reasonable for a responsible body to have to take;
(c)    as to circumstances in which it is not reasonable for a responsible body to have to take steps of a prescribed description;
(d)    as to steps which it is never reasonable for a responsible body to have to take.
(2)    Before making regulations under sub-paragraph (1) the Secretary of State must consult the Commission, the Scottish Ministers and such other persons as he considers appropriate.
PART 4

GOODS, FACILITIES AND SERVICES

13        In considering whether it is reasonable for a provider to have to take a particular step in order to comply with its duty under section 36, a provider must have regard to any relevant provisions of a code of practice issued by the Commission.
14 (1) For the purposes of section 36, regulations may make provision as to—
(a)    circumstances in which it is reasonable for a provider of goods, facilities or services to have to take steps of a description specified in the regulations;
(b)    circumstances in which it is not reasonable for such a provider to have to take steps of a description specified in the regulations;
(c)    matters that are to be taken into account in determining whether any provision of a kind mentioned in section 36(3)(c) or (d) is reasonable;
(d)    what is to be included within the meaning of “practice, policy or procedure”;
(e)    what is not to be included within the meaning of that expression;
(f)    things which are to be treated as physical features;
(g)    things which are not to be treated as physical features;
(h)    things which are to be treated as auxiliary aids or services;
(i)    things which are not to be treated as auxiliary aids or services.
(2)    For the purposes of section 36(6)(b), regulations may make provision for—
(a)    the prescribed maximum there mentioned to be calculated by reference to—
(i)    aggregate amounts of expenditure incurred in relation to different cases;
(ii)    prescribed periods;
(iii)    goods, facilities or services of prescribed description;
(iv)    premises of a prescribed description; or
(v)    such other criteria as may be prescribed;
(b)    expenditure incurred by one provider of goods, facilities or services to be treated as incurred by another.
(3)    Before making regulations under this paragraph the Secretary of State must consult—
(a)    the Commission;
(b)    the Scottish Ministers, if the regulations concern any matter falling within devolved competence (within the meaning of the Scotland Act 1998 (c. 46));
(c)    the National Assembly for Wales, if the regulations concern any matter relating to functions transferred to the Assembly by or under the Government of Wales Act 1998 (c. 38); and
(d)    such other persons as he considers appropriate.

15        The following are examples of goods, services and facilities to which section 36 applies—
(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 entertainment, recreation, training or refreshment;
(h)    facilities for social, cultural or recreation activities, which are offered by voluntary organisations;
(i)    the services of any profession or occupation;
(j)    the services of any local or other public authority.

 

 
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Prepared 16 January 2003