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Equality Bill


Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

8

 

(4)   

But B cannot establish a contravention of this Act by virtue of subsection (1) if,

in reliance on another provision of this Act or any other enactment, A shows

that A’s treatment of B is not direct discrimination because of either or both of

the characteristics in the combination.

(5)   

Subsection (1) does not apply to a combination of characteristics that includes

5

disability in circumstances where, if a claim of direct discrimination because of

disability were to be brought, it would come within section 115 (special

educational needs).

(6)   

A Minister of the Crown may by order amend this section so as to—

(a)   

make further provision about circumstances in which B can, or in

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which B cannot, establish a contravention of this Act by virtue of

subsection (1);

(b)   

specify other circumstances in which subsection (1) does not apply.

(7)   

The references to direct discrimination are to a contravention of this Act by

virtue of section 13.

15

15      

Discrimination arising from disability

(1)   

A person (A) discriminates against a disabled person (B) if—

(a)   

A treats B unfavourably because of something arising in consequence

of B’s disability, and

(b)   

A cannot show that the treatment is a proportionate means of achieving

20

a legitimate aim.

(2)   

Subsection (1) does not apply if A shows that A did not know, and could not

reasonably have been expected to know, that B had the disability.

16      

Gender reassignment discrimination: cases of absence from work

(1)   

This section has effect for the purposes of the application of Part 5 (work) to the

25

protected characteristic of gender reassignment.

(2)   

A person (A) discriminates against a transsexual person (B) if, in relation to an

absence of B’s that is because of gender reassignment, A treats B less

favourably than A would treat B if—

(a)   

B’s absence was because of sickness or injury, or

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(b)   

B’s absence was for some other reason and it is not reasonable for B to

be treated less favourably.

(3)   

A person’s absence is because of gender reassignment if it is because the

person is proposing to undergo, is undergoing or has undergone the process

(or part of the process) mentioned in section 7(1).

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17      

Pregnancy and maternity discrimination: non-work cases

(1)   

This section has effect for the purposes of the application to the protected

characteristic of pregnancy and maternity of—

(a)   

Part 3 (services and public functions);

(b)   

Part 4 (premises);

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(c)   

Chapter 2 of Part 6 (further or higher education);

(d)   

Part 7 (associations).

 
 

Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

9

 

(2)   

A person (A) discriminates against a woman if A treats her unfavourably

because of a pregnancy of hers.

(3)   

A person (A) discriminates against a woman if, in the period of 26 weeks

beginning with the day on which she gives birth, A treats her unfavourably

because she has given birth.

5

(4)   

The reference in subsection (3) to treating a woman unfavourably because she

has given birth includes, in particular, a reference to treating her unfavourably

because she is breast-feeding.

(5)   

For the purposes of this section, the day on which a woman gives birth is the

day on which—

10

(a)   

she gives birth to a living child, or

(b)   

she gives birth to a dead child (more than 24 weeks of the pregnancy

having passed).

(6)   

Section 13, so far as relating to sex discrimination, does not apply to anything

done in relation to a woman in so far as—

15

(a)   

it is for the reason mentioned in subsection (2), or

(b)   

it is in the period, and for the reason, mentioned in subsection (3).

18      

Pregnancy and maternity discrimination: work cases

(1)   

This section has effect for the purposes of the application of Part 5 (work) to the

protected characteristic of pregnancy and maternity.

20

(2)   

A person (A) discriminates against a woman if, in the protected period in

relation to a pregnancy of hers, A treats her unfavourably —

(a)   

because of the pregnancy, or

(b)   

because of illness suffered by her as a result of it.

(3)   

A person (A) discriminates against a woman if A treats her unfavourably

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because she is on compulsory maternity leave.

(4)   

A person (A) discriminates against a woman if A treats her unfavourably

because she is exercising or seeking to exercise, or has exercised or sought to

exercise, the right to ordinary or additional maternity leave.

(5)   

For the purposes of subsection (2), if the treatment of a woman is in

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implementation of a decision taken in the protected period, the treatment is to

be regarded as occurring in that period (even if the implementation is not until

after the end of that period).

(6)   

The protected period, in relation to a woman’s pregnancy, begins when the

pregnancy begins, and ends—

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(a)   

if she has the right to ordinary and additional maternity leave, at the

end of the additional maternity leave period or (if earlier) when she

returns to work after the pregnancy;

(b)   

if she does not have that right, at the end of the period of 2 weeks

beginning with the end of the pregnancy.

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(7)   

Section 13, so far as relating to sex discrimination, does not apply to treatment

of a woman in so far as—

(a)   

it is in the protected period in relation to her and is for a reason

mentioned in paragraph (a) or (b) of subsection (2), or

(b)   

it is for a reason mentioned in subsection (3) or (4).

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Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

10

 

19      

Indirect discrimination

(1)   

A person (A) discriminates against another (B) if A applies to B a provision,

criterion or practice which is discriminatory in relation to a relevant protected

characteristic of B’s.

(2)   

For the purposes of subsection (1), a provision, criterion or practice is

5

discriminatory in relation to a relevant protected characteristic of B’s if—

(a)   

A applies, or would apply, it to persons with whom B does not share

the characteristic,

(b)   

it puts, or would put, persons with whom B shares the characteristic at

a particular disadvantage when compared with persons with whom B

10

does not share it,

(c)   

it puts, or would put, B at that disadvantage, and

(d)   

A cannot show it to be a proportionate means of achieving a legitimate

aim.

(3)   

The relevant protected characteristics are—

15

age;

disability;

gender reassignment;

marriage and civil partnership;

race;

20

religion or belief;

sex;

sexual orientation.

Adjustments for disabled persons

20      

Duty to make adjustments

25

(1)   

Where this Act imposes a duty to make reasonable adjustments on a person,

this section, sections 21 and 22 and the applicable Schedule apply; and for those

purposes, a person on whom the duty is imposed is referred to as A.

(2)   

The duty comprises the following three requirements.

(3)   

The first requirement is a requirement, where a provision, criterion or practice

30

of A’s puts a disabled person at a substantial disadvantage in relation to a

relevant matter in comparison with persons who are not disabled, to take such

steps as it is reasonable to have to take to avoid the disadvantage.

(4)   

The second requirement is a requirement, where a physical feature puts a

disabled person at a substantial disadvantage in relation to a relevant matter in

35

comparison with persons who are not disabled, to take such steps as it is

reasonable to have to take to avoid the disadvantage.

(5)   

The third requirement is a requirement, where a disabled person would, but

for the provision of an auxiliary aid, be put at a substantial disadvantage in

relation to a relevant matter in comparison with persons who are not disabled,

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to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6)   

A reference in section 21 or 22 or an applicable Schedule to the first, second or

third requirement is to be construed in accordance with this section.

 
 

Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

11

 

(7)   

A reference in this section, section 21 or 22 or an applicable Schedule (apart

from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—

(a)   

a feature arising from the design or construction of a building,

(b)   

a feature of an approach to, exit from or access to a building,

(c)   

a fixture or fitting, or furniture, furnishings, materials, equipment or

5

other chattels, in or on premises, or

(d)   

any other physical element or quality.

(8)   

A reference in this section, section 21 or 22 or an applicable Schedule to an

auxiliary aid includes a reference to an auxiliary service.

(9)   

A reference in this section or an applicable Schedule to chattels is to be read, in

10

relation to Scotland, as a reference to moveable property.

(10)   

The applicable Schedule is, in relation to the Part of this Act specified in the

first column of the Table, the Schedule specified in the second column.

 

Part of this Act

Applicable Schedule

 
 

Part 3 (services and public functions)

Schedule 2

 

15

 

Part 4 (premises)

Schedule 4

 
 

Part 5 (work)

Schedule 8

 
 

Part 6 (education)

Schedule 13

 
 

Part 7 (associations)

Schedule 15

 
 

Each of the Parts mentioned above

Schedule 21

 

20

21      

Failure to comply with duty

(1)   

A failure to comply with the first, second or third requirement is a failure to

comply with a duty to make reasonable adjustments.

(2)   

A discriminates against a disabled person if A fails to comply with that duty in

relation to that person.

25

(3)   

A provision of an applicable Schedule which imposes a duty to comply with

the first, second or third requirement applies only for the purpose of

establishing whether A has contravened this Act by virtue of subsection (2); a

failure to comply is, accordingly, not actionable by virtue of another provision

of this Act or otherwise.

30

22      

Regulations

(1)   

Regulations may prescribe—

(a)   

matters to be taken into account in deciding whether it is reasonable for

A to take a step for the purposes of a prescribed provision of an

applicable Schedule;

35

(b)   

descriptions of persons to whom the first, second or third requirement

does not apply.

(2)   

Regulations may make provision as to—

 
 

Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

12

 

(a)   

circumstances in which it is, or in which it is not, reasonable for a

person of a prescribed description to have to take steps of a prescribed

description;

(b)   

what is, or what is not, a provision, criterion or practice;

(c)   

things which are, or which are not, to be treated as physical features;

5

(d)   

things which are, or which are not, to be treated as alterations of

physical features;

(e)   

things which are, or which are not, to be treated as auxiliary aids.

(3)   

Provision made by virtue of this section may amend an applicable Schedule.

Discrimination: supplementary

10

23      

Comparison by reference to circumstances

(1)   

On a comparison of cases for the purposes of section 13, 14, or 19 there must be

no material difference between the circumstances relating to each case.

(2)   

The circumstances relating to a case include a person’s abilities if—

(a)   

on a comparison for the purposes of section 13, the protected

15

characteristic is disability;

(b)   

on a comparison for the purposes of section 14, one of the protected

characteristics in the combination is disability.

(3)   

If the protected characteristic is sexual orientation, the fact that one person

(whether or not the person referred to as B) is a civil partner while another is

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married is not a material difference between the circumstances relating to each

case.

24      

Irrelevance of alleged discriminator’s characteristics

(1)   

For the purpose of establishing a contravention of this Act by virtue of section

13(1), it does not matter whether A has the protected characteristic.

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(2)   

For the purpose of establishing a contravention of this Act by virtue of section

14(1), it does not matter—

(a)   

whether A has one of the protected characteristics in the combination;

(b)   

whether A has both.

25      

References to particular strands of discrimination

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(1)   

Age discrimination is—

(a)   

discrimination within section 13 because of age;

(b)   

discrimination within section 19 where the relevant protected

characteristic is age.

(2)   

Disability discrimination is—

35

(a)   

discrimination within section 13 because of disability;

(b)   

discrimination within section 15;

(c)   

discrimination within section 19 where the relevant protected

characteristic is disability;

(d)   

discrimination within section 21.

40

(3)   

Gender reassignment discrimination is—

 
 

Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

13

 

(a)   

discrimination within section 13 because of gender reassignment;

(b)   

discrimination within section 16;

(c)   

discrimination within section 19 where the relevant protected

characteristic is gender reassignment.

(4)   

Marriage and civil partnership discrimination is—

5

(a)   

discrimination within section 13 because of marriage and civil

partnership;

(b)   

discrimination within section 19 where the relevant protected

characteristic is marriage and civil partnership.

(5)   

Pregnancy and maternity discrimination is discrimination within section 17 or

10

18.

(6)   

Race discrimination is—

(a)   

discrimination within section 13 because of race;

(b)   

discrimination within section 19 where the relevant protected

characteristic is race.

15

(7)   

Religious or belief-related discrimination is—

(a)   

discrimination within section 13 because of religion or belief;

(b)   

discrimination within section 19 where the relevant protected

characteristic is religion or belief.

(8)   

Sex discrimination is—

20

(a)   

discrimination within section 13 because of sex;

(b)   

discrimination within section 19 where the relevant protected

characteristic is sex.

(9)   

Sexual orientation discrimination is—

(a)   

discrimination within section 13 because of sexual orientation;

25

(b)   

discrimination within section 19 where the relevant protected

characteristic is sexual orientation.

Other prohibited conduct

26      

Harassment

(1)   

A person (A) harasses another (B) if—

30

(a)   

A engages in unwanted conduct related to a relevant protected

characteristic, and

(b)   

the conduct has the purpose or effect of—

(i)   

violating B’s dignity, or

(ii)   

creating an intimidating, hostile, degrading, humiliating or

35

offensive environment for B.

(2)   

A also harasses B if—

(a)   

A engages in unwanted conduct of a sexual nature, and

(b)   

the conduct has the purpose or effect referred to in subsection (1)(b).

(3)   

A also harasses B if—

40

(a)   

A or another person engages in unwanted conduct of a sexual nature or

that is related to gender reassignment or sex,

 
 

Equality Bill
Part 2 — Equality: key concepts
Chapter 2 — Prohibited conduct

14

 

(b)   

the conduct has the purpose or effect referred to in subsection (1)(b),

and

(c)   

because of B’s rejection of or submission to the conduct, A treats B less

favourably than A would treat B if B had not rejected or submitted to

the conduct.

5

(4)   

In deciding whether conduct has the effect referred to in subsection (1)(b), each

of the following must be taken into account—

(a)   

the perception of B;

(b)   

the other circumstances of the case;

(c)   

whether it is reasonable for the conduct to have that effect.

10

(5)   

The relevant protected characteristics are—

age;

disability;

gender reassignment;

race;

15

religion or belief;

sex;

sexual orientation.

27      

Victimisation

(1)   

A person (A) victimises another person (B) if A subjects B to a detriment

20

because—

(a)   

B does a protected act, or

(b)   

A believes that B has done, or may do, a protected act.

(2)   

Each of the following is a protected act—

(a)   

bringing proceedings under this Act;

25

(b)   

giving evidence or information in connection with proceedings under

this Act;

(c)   

doing any other thing for the purposes of or in connection with this Act;

(d)   

making an allegation (whether or not express) that A or another person

has contravened this Act.

30

(3)   

Giving false evidence or information, or making a false allegation, is not a

protected act if the evidence or information is given, or the allegation is made,

in bad faith.

(4)   

This section applies only where the person subjected to a detriment is an

individual.

35

(5)   

The reference to contravening this Act includes a reference to committing a

breach of an equality clause or rule.

 
 

 
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