2010 c. 15

Schedule 9— Work: exceptions

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paragraphs 1–20

Part 1— Occupational requirements

paragraphs 1–6

General

Paragraph 1— General

1.
A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work—
1. (a)
  it is an occupational requirement,
2. (b)
  the application of the requirement is a proportionate means of achieving a legitimate aim, and
3. (c)
  the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
2.
The provisions are—
1. (a)
  section 39(1)(a) or (c) or (2)(b) or (c);
2. (b)
  section 41(1)(b);
3. (c)
  section 44(1)(a) or (c) or (2)(b) or (c);
4. (d)
  section 45(1)(a) or (c) or (2)(b) or (c);
5. (e)
  section 49(3)(a) or (c) or (6)(b) or (c);
6. (f)
  section 50(3)(a) or (c) or (6)(b) or (c);
7. (g)
  section 51(1);
8. (h)
  section 60A(1).
3.
The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
1. (a)
  in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to be ignored);
2. (b)
  in the case of marriage and civil partnership, as references to a requirement not to be married or a civil partner (and section 8(2) is accordingly to be ignored).
4.
In the case of a requirement to be of a particular sex, sub-paragraph (1) has effect as if in paragraph (c), the words from “(or” to the end were omitted.

Religious requirements relating to sex, marriage etc., sexual orientation

Paragraph 2— Religious requirements relating to sex, marriage etc., sexual orientation

1.
A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that—
1. (a)
  the employment is for the purposes of an organised religion,
2. (b)
  the application of the requirement engages the compliance or non-conflict principle, and
3. (c)
  the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
2.
The provisions are—
1. (a)
  section 39(1)(a) or (c) or (2)(b) or (c);
2. (b)
  section 49(3)(a) or (c) or (6)(b) or (c);
3. (c)
  section 50(3)(a) or (c) or (6)(b) or (c);
4. (d)
  section 51(1);
5. (e)
  section 60A(1).
3.
A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—
1. (a)
  the qualification is for the purposes of employment mentioned in sub-paragraph (1)(a), and
2. (b)
  the application of the requirement engages the compliance or non-conflict principle.
4.
This sub-paragraph applies to—
1. (a)
  a requirement to be of a particular sex;
2. (b)
  a requirement not to be a transsexual person;
3. (c)
  a requirement not to be married or a civil partner;
4. (ca)
  a requirement not to be married to, or the civil partner of, a person of the same sex;
5. (cb)
  a requirement not to be the civil partner of a person of the opposite sex;
6. (d)
  a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
7. (e)
  a requirement relating to circumstances in which a marriage or civil partnership came to an end;
8. (f)
  a requirement related to sexual orientation.
5.
The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.
6.
The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
7.
A reference to employment includes a reference to an appointment to a personal or public office.
8.
In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1) has effect as if in paragraph (c) the words from “(or” to the end were omitted.

Other requirements relating to religion or belief

Paragraph 3— Other requirements relating to religion or belief

A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work—

(a)
it is an occupational requirement,
(b)
the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c)
the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

Armed forces

Paragraph 4— Armed forces

1.
A person does not contravene section 39(1)(a) or (c) or (2)(b) or section 60A(1) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces.
2.
A relevant requirement is—
1. (a)
  a requirement to be a man;
2. (b)
  a requirement not to be a transsexual person.
3.
This Part of this Act, so far as relating to age or disability, does not apply to service in the armed forces; and section 55, so far as relating to disability, does not apply to work experience in the armed forces.

Employment services

Paragraph 5— Employment services

1.
A person (A) does not contravene section 55(1) or (2) or section 60A(1) if A shows that A's treatment of another person relates only to work the offer of which could be refused to that other person in reliance on paragraph 1, 2, 3 or 4.
2.
A person (A) does not contravene section 55(1) or (2) or section 60A(1) if A shows that A's treatment of another person relates only to training for work of a description mentioned in sub-paragraph (1).
3.
A person (A) does not contravene section 55(1) or (2) or section 60A(1) if A shows that—
1. (a)
  A acted in reliance on a statement made to A by a person with the power to offer the work in question to the effect that, by virtue of sub-paragraph (1) or (2), A's action would be lawful, and
2. (b)
  it was reasonable for A to rely on the statement.
4.
A person commits an offence by knowingly or recklessly making a statement such as is mentioned in sub-paragraph (3)(a) which in a material respect is false or misleading.
5.
A person guilty of an offence under sub-paragraph (4) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Interpretation

Paragraph 6— Interpretation

1.
This paragraph applies for the purposes of this Part of this Schedule.
2.
A reference to contravening a provision of this Act is a reference to contravening that provision by virtue of section 13.
3.
A reference to work is a reference to employment, contract work, a position as a partner or as a member of an LLP, or an appointment to a personal or public office.
4.
A reference to a person includes a reference to an organisation.
5.
A reference to section 39(2)(b), 44(2)(b), 45(2)(b), 49(6)(b) or 50(6)(b) is to be read as a reference to that provision with the omission of the words “or for receiving any other benefit, facility or service”.
6.
A reference to section 39(2)(c), 44(2)(c), 45(2)(c), 49(6)(c), 50(6)(c), 53(2)(a) or 55(2)(c) (dismissal, etc.) does not include a reference to that provision so far as relating to sex.
7.
The reference to paragraph (b) of section 41(1), so far as relating to sex, is to be read as if that paragraph read— b by not allowing the worker to do the work.

Part 2— Exceptions relating to age

paragraphs 7–16

Preliminary

Paragraph 7— Preliminary

For the purposes of this Part of this Schedule, a reference to an age contravention is a reference to a contravention of this Part of this Act, so far as relating to age.

Retirement

Paragraph 8— Retirement

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Applicants at or approaching retirement age

Paragraph 9— Applicants at or approaching retirement age

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Benefits based on length of service

Paragraph 10— Benefits based on length of service

1.
It is not an age contravention for a person (A) to put a person (B) at a disadvantage when compared with another (C), in relation to the provision of a benefit, facility or service in so far as the disadvantage is because B has a shorter period of service than C.
2.
If B's period of service exceeds 5 years, A may rely on sub-paragraph (1) only if A reasonably believes that doing so fulfils a business need.
3.
A person's period of service is whichever of the following A chooses—
1. (a)
  the period for which the person has been working for A at or above a level (assessed by reference to the demands made on the person) that A reasonably regards as appropriate for the purposes of this paragraph, or
2. (b)
  the period for which the person has been working for A at any level.
4.
The period for which a person has been working for A must be based on the number of weeks during the whole or part of which the person has worked for A.
5.
But for that purpose A may, so far as is reasonable, discount—
1. (a)
  periods of absence;
2. (b)
  periods that A reasonably regards as related to periods of absence.
6.
For the purposes of sub-paragraph (3)(b), a person is to be treated as having worked for A during any period in which the person worked for a person other than A if—
1. (a)
  that period counts as a period of employment with A as a result of section 218 of the Employment Rights Act 1996, or
2. (b)
  if sub-paragraph (a) does not apply, that period is treated as a period of employment by an enactment pursuant to which the person's employment was transferred to A.
7.
For the purposes of this paragraph, the reference to a benefit, facility or service does not include a reference to a benefit, facility or service which may be provided only by virtue of a person's ceasing to work.

The national minimum wage: young workers

Paragraph 11— The national minimum wage: young workers

1.
It is not an age contravention for a person to pay a young worker (A) at a lower rate than that at which the person pays an older worker (B) if—
1. (a)
  the hourly rate for the national minimum wage for a person of A's age is lower than that for a person of B's age, and
2. (b)
  the rate at which A is paid is below the single hourly rate.
2.
A young worker is a person who qualifies for the national minimum wage at a lower rate than the single hourly rate; and an older worker is a person who qualifies for the national minimum wage at a higher rate than that at which the young worker qualifies for it.
3.
The single hourly rate is the rate prescribed under section 1(3) of the National Minimum Wage Act 1998.

The national minimum wage: apprentices

Paragraph 12— The national minimum wage: apprentices

1.
It is not an age contravention for a person to pay an apprentice who does not qualify for the national minimum wage at a lower rate than the person pays an apprentice who does.
2.
An apprentice is a person who—
1. (a)
  is employed under a contract of apprenticeship, or
2. (b)
  as a result of provision made by virtue of section 3(2)(a) of the National Minimum Wage Act 1998 (persons not qualifying), is treated as employed under a contract of apprenticeship.

Redundancy

Paragraph 13— Redundancy

1.
It is not an age contravention for a person to give a qualifying employee an enhanced redundancy payment of an amount less than that of an enhanced redundancy payment which the person gives to another qualifying employee, if each amount is calculated on the same basis.
2.
It is not an age contravention to give enhanced redundancy payments only to those who are qualifying employees by virtue of sub-paragraph (3)(a) or (b).
3.
A person is a qualifying employee if the person—
1. (a)
  is entitled to a redundancy payment as a result of section 135 of the Employment Rights Act 1996,
2. (b)
  agrees to the termination of the employment in circumstances where the person would, if dismissed, have been so entitled,
3. (c)
  would have been so entitled but for section 155 of that Act (requirement for two years' continuous employment), or
4. (d)
  agrees to the termination of the employment in circumstances where the person would, if dismissed, have been so entitled but for that section.
4.
An enhanced redundancy payment is a payment the amount of which is, subject to sub-paragraphs (5) and (6), calculated in accordance with section 162(1) to (3) of the Employment Rights Act 1996.
5.
A person making a calculation for the purposes of sub-paragraph (4)—
1. (a)
  may treat a week's pay as not being subject to a maximum amount;
2. (b)
  may treat a week's pay as being subject to a maximum amount above that for the time being specified in section 227(1) of the Employment Rights Act 1996;
3. (c)
  may multiply the appropriate amount for each year of employment by a figure of more than one.
6.
Having made a calculation for the purposes of sub-paragraph (4) (whether or not in reliance on sub-paragraph (5)), a person may multiply the amount calculated by a figure of more than one.
7.
In sub-paragraph (5), “the appropriate amount” has the meaning given in section 162 of the Employment Rights Act 1996, and “a week's pay” is to be read with Chapter 2 of Part 14 of that Act.
8.
For the purposes of sub-paragraphs (4) to (6), the reference to “the relevant date” in subsection (1)(a) of section 162 of that Act is, in the case of a person who is a qualifying employee by virtue of sub-paragraph (3)(b) or (d), to be read as reference to the date of the termination of the employment.

Insurance etc.

Paragraph 14— Insurance etc.

1.
It is not an age contravention for an employer to make arrangements for, or afford access to, the provision of insurance or a related financial service to or in respect of an employee for a period ending when the employee attains whichever is the greater of—
1. (a)
  the age of 65, and
2. (b)
  the state pensionable age.
2.
It is not an age contravention for an employer to make arrangements for, or afford access to, the provision of insurance or a related financial service to or in respect of only such employees as have not attained whichever is the greater of—
1. (a)
  the age of 65, and
2. (b)
  the state pensionable age.
3.
Sub-paragraphs (1) and (2) apply only where the insurance or related financial service is, or is to be, provided to the employer's employees or a class of those employees—
1. (a)
  in pursuance of an arrangement between the employer and another person, or
2. (b)
  where the employer's business includes the provision of insurance or financial services of the description in question, by the employer.
4.
The state pensionable age is the pensionable age determined in accordance with the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995.

Child care

Paragraph 15— Child care

1.
A person does not contravene a relevant provision, so far as relating to age, only by providing, or making arrangements for or facilitating the provision of, care for children of a particular age group.
2.
The relevant provisions are—
1. (a)
  section 39(2)(b);
2. (b)
  section 41(1)(c);
3. (c)
  section 44(2)(b);
4. (d)
  section 45(2)(b);
5. (e)
  section 47(2)(b);
6. (f)
  section 48(2)(b);
7. (g)
  section 49(6)(b);
8. (h)
  section 50(6)(b);
9. (i)
  section 57(2)(a);
10. (j)
  section 58(3)(a).
3.
Facilitating the provision of care for a child includes—
1. (a)
  paying for some or all of the cost of the provision;
2. (b)
  helping a parent of the child to find a suitable person to provide care for the child;
3. (c)
  enabling a parent of the child to spend more time providing care for the child or otherwise assisting the parent with respect to the care that the parent provides for the child.
4.
A child is a person who has not attained the age of 17.
5.
A reference to care includes a reference to supervision.

Contributions to personal pension schemes

Paragraph 16— Contributions to personal pension schemes

1.
A Minister of the Crown may by order provide that it is not an age contravention for an employer to maintain or use, with respect to contributions to personal pension schemes, practices, actions or decisions relating to age which are of a specified description.
2.
An order authorising the use of practices, actions or decisions which are not in use before the order comes into force must not be made unless the Minister consults such persons as the Minister thinks appropriate.
3.
“Personal pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993; and “employer”, in relation to a personal pension scheme, has the meaning given in section 318(1) of the Pensions Act 2004.

Part 3— Other exceptions

paragraphs 17–20

Non-contractual payments to women on maternity leave

Paragraph 17— Non-contractual payments to women on maternity leave

1.
A person does not contravene section 39(1)(b) or (2), so far as relating to pregnancy and maternity, by depriving a woman who is on maternity leave of any benefit from the terms of her employment relating to pay.
2.
The reference in sub-paragraph (1) to benefit from the terms of a woman's employment relating to pay does not include a reference to—
1. (a)
  maternity-related pay (including maternity-related pay that is increase-related),
2. (b)
  pay (including increase-related pay) in respect of times when she is not on maternity leave, or
3. (c)
  pay by way of bonus in respect of times when she is on compulsory maternity leave.
3.
For the purposes of sub-paragraph (2), pay is increase-related in so far as it is to be calculated by reference to increases in pay that the woman would have received had she not been on maternity leave.
4.
A reference to terms of her employment is a reference to terms of her employment that are not in her contract of employment, her contract of apprenticeship or her contract to do work personally.
5.
“Pay” means benefits—
1. (a)
  that consist of the payment of money to an employee by way of wages or salary, and
2. (b)
  that are not benefits whose provision is regulated by the contract referred to in sub-paragraph (4).
6.
“Maternity-related pay” means pay to which a woman is entitled—
1. (a)
  as a result of being pregnant, or
2. (b)
  in respect of times when she is on maternity leave.

Benefits dependent on marital status, etc.

Paragraph 18— Benefits dependent on marital status, etc.

1.
A person does not contravene this Part of this Act, so far as relating to sexual orientation, by doing anything which prevents or restricts a person who is not within sub-paragraph (1A) from having access to a benefit, facility or service—
1. (a)
  the right to which accrued before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force), or
2. (b)
  which is payable in respect of periods of service before that date.
1A.
A person is within this sub-paragraph if the person is—
1. (a)
  a man who is married to a woman, or
2. (b)
  a woman who is married to a man, or
3. (c)
  married to a person of the same sex in a relevant gender change case.
1B.
The reference in sub-paragraph (1A)(c) to a relevant gender change case is a reference to a case where—
1. (a)
  the married couple were of the opposite sex at the time of their marriage, and
2. (b)
  a full gender recognition certificate has been issued to one of the couple under the Gender Recognition Act 2004.
1C.
Sub-paragraph (1) does not apply in relation to access to a benefit payable under an occupational pension scheme to the surviving spouse or surviving civil partner of a deceased member or deceased pension credit member of the scheme.
2.
A person does not contravene this Part of this Act, so far as relating to sexual orientation, by providing married persons and civil partners (to the exclusion of all other persons) with access to a benefit, facility or service.

Provision of services etc. to the public

Paragraph 19— Provision of services etc. to the public

1.
A does not contravene a provision mentioned in sub-paragraph (2) in relation to the provision of a benefit, facility or service to B if A is concerned with the provision (for payment or not) of a benefit, facility or service of the same description to the public.
2.
The provisions are—
1. (a)
  section 39(2) and (4);
2. (b)
  section 41(1) and (3);
3. (c)
  sections 44(2) and (6) and 45(2) and (6);
4. (d)
  sections 49(6) and (8) and 50(6), (7), (9) and (10).
3.
Sub-paragraph (1) does not apply if—
1. (a)
  the provision by A to the public differs in a material respect from the provision by A to comparable persons,
2. (b)
  the provision to B is regulated by B's terms, or
3. (c)
  the benefit, facility or service relates to training.
4.
“Comparable persons” means—
1. (a)
  in relation to section 39(2) or (4), the other employees;
2. (b)
  in relation to section 41(1) or (3), the other contract workers supplied to the principal;
3. (c)
  in relation to section 44(2) or (6), the other partners of the firm;
4. (d)
  in relation to section 45(2) or (6), the other members of the LLP;
5. (e)
  in relation to section 49(6) or (8) or 50(6), (7), (9) or (10), persons holding offices or posts not materially different from that held by B.
5.
“B's terms” means—
1. (a)
  the terms of B's employment,
2. (b)
  the terms on which the principal allows B to do the contract work,
3. (c)
  the terms on which B has the position as a partner or member, or
4. (d)
  the terms of B's appointment to the office.
6.
A reference to the public includes a reference to a section of the public which includes B.

Insurance contracts, etc.

Paragraph 20— Insurance contracts, etc.

1.
It is not a contravention of this Part of this Act, so far as relating to relevant discrimination, to do anything in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk if—
1. (a)
  that thing is done by reference to actuarial or other data from a source on which it is reasonable to rely, and
2. (b)
  it is reasonable to do it.
2.
“Relevant discrimination” is—
1. (a)
  gender reassignment discrimination;
2. (b)
  marriage and civil partnership discrimination;
3. (c)
  pregnancy and maternity discrimination;
4. (d)
  sex discrimination.