CAPÍTULO III: DESARROLLO DEL ANTEPROYECTO
3.1 Diseño arquitectónico del proyecto:
Statutory authority 14.5
It is not a breach of the Act as it applies to further and higher education to do anything that is required under another statute. However, it is only in cases where a statutory requirement is specific, leaving an education provider with no choice other than to act in a particular way, that the provisions of the Act may be overridden. This exception is thus of narrow application, and it is likely to permit discrimination only in rare circumstances.
This provision applies to the following protected characteristics (and mirrors the provisions in previous equality legislation):
• Age • Disability • Religion or belief • Sex • Sexual orientation. s17 s25 s191 and Sch22.1 Exceptions
Exceptions
What is a statutory requirement? 14.6
Anything that is required under: • an Act of Parliament
• an Act of the Scottish Parliament
• an Act or Measure of the National Assembly for Wales
• subordinate legislation of such Acts and Measures (such as regulations) • a Measure of the General Synod of the Church of England.
For the protected characteristics of disability, religion or belief and sexual orientation a statutory requirement also includes any requirement or condition imposed pursuant to such an Act or Measure by:
• a Minister of the Crown
• a member of the Scottish Executive • the National Assembly for Wales
• the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh government.
Example:A university must lawfully refuse to sell alcohol to someone under the age of 18.
Example: A wheelchair user wants to access a university building but cannot get into the building as there is a steep flight of steps at the entrance with no ramp or lift. He asks the university why these have not been installed. The university replies that because the building is a listed building it is not required to make any changes to it. As this exception only applies when an education provider has no option but to act in a certain way, and in this case the university could seek consent to make the building more accessible, it would not be able to rely on this
exception to make its actions lawful.
(See Appendix 4 for more information on legal considerations in making changes to premises.)
184
Exceptions
14.7This exception does not apply to vocational training. In the case of HE and FE institutions, vocational training means any form of education which prepares people for a qualification for a particular profession, trade or employment or equips them with the training and skills required for such a profession, trade or employment. This would include in HE, for example, courses providing medical training for doctors and teacher-training courses and in FE, vocational courses such as those providing specific training for plumbing, construction or, hairdressing work.
Protection of women 14.8
The Act allows an education provider to treat women differently if it is
required to do so to comply with laws protecting women who are pregnant or who have recently given birth or against risks specific to women.
This exception only covers vocational training.
Nationality discrimination authorised by statute or the executive 14.9
The Act provides that:
• direct or indirect nationality discrimination, or
• indirect discrimination, where the provision, criterion or practice refers to residency requirements (such as a place of residence or length of time a person has been present or resident in or outside the UK or an area within it),
is lawful in relation to the further and higher education provisions if it is done to comply with another law, Ministerial arrangements or Ministerial
conditions.
For example, the Education (Fees and Awards) Regulations 2007 – made under the Fees and Awards Act 1983 – permit Higher Education Institutions to charge higher fees to students who do not have a specified connection with the United Kingdom than to those who do have such a connection.
Example:A pregnant woman undertaking a course to become a radiologist is prevented from undertaking procedures where there is a risk of accidental high doses of radiation which is known to cause birth defects. This would not be unlawful sex or pregnancy and maternity discrimination. Sch22.1(2), s56(6) Sch22.2 Sch23.1 Exceptions
Exceptions
Content of the curriculum 14.10
Obligations on education providers do not apply to anything done in
connection with the curriculum. This is explained in more detail in paragraph 10.27.
Communal accommodation 14.11
An education provider does not breach the prohibition of sex discrimination or gender reassignment discrimination by doing anything in relation to admitting students to communal accommodation, or providing any benefit, facility or service linked to the accommodation, if the criteria set out below are satisfied.
14.12
‘Communal accommodation’ is residential accommodation which includes dormitories or other shared sleeping accommodation which, for reasons of privacy, should be used only by persons of the same sex. It can also include residential accommodation all or part of which should be used only by
persons of the same sex because of the nature of the sanitary facilities serving the accommodation.
14.13
A benefit, facility or service is linked to communal accommodation if it cannot properly and effectively be provided except for those using the accommodation. It can be refused only if the person can lawfully be refused use of the accommodation.
14.14
Restricting communal accommodation for one sex is permitted only if accommodation is managed as fairly as possible for both women and men.
Example: Where a hall of residence has only one communal bathroom, it would be lawful for an education provider to restrict the hall to only male or only female students.
s94(2)
186
Exceptions
14.15
In excluding a student from communal accommodation because of sex or gender reassignment, the education provider must take account of: • whether and how far it is reasonable to expect that the accommodation
should be altered or extended or that further accommodation should be provided, and
• the relative frequency of demand or need for the accommodation by persons of each sex.
14.16
The Act permits an education provider to exclude a student who is proposing to undergo, is undergoing or who has undergone gender reassignment from communal accommodation. However, an education provider could only exclude such a student from communal accommodation where the exclusion is a proportionate means of achieving a legitimate aim. This is likely to be the case only in exceptional circumstances.
National security 14.17
An education provider does not breach the Act by doing anything it is proportionate to do for the purpose of safeguarding national security. This exception would only apply to education providers in very rare
circumstances. To be lawful the particular discriminatory act must be justified as proportionate which means that the action taken must be appropriate and necessary for national security.
Charities 14.18
An education provider which is a charity will not breach the Act by providing benefits only to people who share a particular protected characteristic if this is in accordance with the charitable instrument that establishes or governs the charity and is either:
• a proportionate means of achieving a legitimate aim, or
Example: It would not be lawful for an education provider with both male and female students to designate all its accommodation as female accommodation only. It would be lawful for it to designate some
accommodation as male only and some as female only.
s192
s193 and 194
Exceptions
• for the purpose of preventing or compensating for a disadvantage linked to that protected characteristic.
14.19
This exception does not apply if the group of people who are to receive benefits under the charitable instrument is defined by colour. If the
charitable instrument enables benefits to be provided to a group of persons defined by colour then it has effect as if it enabled benefits to be provided: • to other groups of persons if the group defined by colour is ignored, or • to all persons generally, if the group of people to receive benefits is defined
only by colour.
If an education provider has a charitable instrument enabling the provision of benefits to black students it would thus actually enable the benefits to be provided to all students. If the instrument seeks to confine benefits to
disabled white female students, then it will be regarded as providing them to disabled female students generally. However if the instrument provides benefits to a group defined by nationality or ethnicity (for example, Polish or African-Caribbean students) then that will be legitimate provided it meets the tests set out in paragraph 14.18 above.
14.20
A charity’s ‘charitable instrument’ is its governing document or, in Scotland, its constitution or founding document. It sets out the charity’s purposes, how its income can be spent and generally how the charity will operate.
Depending on the legal structure of the charity this may be in the form of a constitution or rules, a trust deed or a memorandum and articles of
association. It could be a charter or Act of Parliament or other document or combination of two or more documents.
14.21
Whether restricting the benefits of a charity to people who share a particular protected characteristic meets either of the Act’s two tests in paragraph 14.18 is ultimately a matter for the courts to decide.
Example:It is lawful for the Royal National Institute for the Blind (RNIB) to run a college, as an education provider, for visually impaired students and not for other disabled students.
188
Exceptions
14.22The exception in the Equality Act applies only to benefits which it is the purpose of the charity to provide. It is that charitable purpose which has to be for the public benefit and which provides part of the justification for limiting the beneficiaries. The ‘public benefit test’, that all charities must pass to gain charitable status, may therefore assist, but will not guarantee, that any such restriction meets either of the tests specified in the Act. The Charity
Commission for England and Wales and the Scottish Charity Regulator will consider the likely impact of any restriction on beneficiaries in the charitable instrument and whether such restriction can be justified, in assessing
whether the aims of a charity meet the ‘public benefit’ test.