Chapter 13 - Exceptions

13.1 The Equality Act 2010 (the Act) contains several exceptions which permit conduct that would otherwise be unlawful under the Act in the provision of services, the exercise of public functions and the activities of associations.

13.2 The exceptions in this chapter are different from the Act’s positive action provisions, which permit certain activities to benefit people who share a protected characteristic. These provisions are discussed in Chapter 10.

13.3 This chapter explains exceptions that apply generally to the provision of services, exercise of functions and activities of associations, and other exceptions that apply only to certain activities. Some exceptions are discussed in Chapter 11 (Services and Public Functions) and Chapter 12 (Associations) where they only apply to those activities.

13.4 In general, discrimination, harassment and victimisation by a service provider, person exercising public functions or association is unlawful under the Act unless an exception applies. Any exception should normally be interpreted restrictively, so that the wording used in the exception is read as giving its narrowest meaning.

13.5 Harassment related to the protected characteristics of religion and belief and sexual orientation is not prohibited under the Act in the areas covered by this Code (s.29(8)). However, where unwanted conduct related to either of these protected characteristics results in a person suffering a detriment, that person may be able to bring a claim of direct discrimination (read Chapter 4).

In this chapter, the term ‘harassment’ is used to refer to harassment related to the protected characteristics of:

• age (for services and public functions, only those aged 18 and over)
• disability
• gender reassignment
• race
• sex

References to types of discrimination

13.6 As explained in Chapter 1, the term ‘discrimination’ is used to refer to direct discrimination, indirect discrimination and, where relevant, discrimination arising from disability, a failure to make a reasonable adjustment (s.25), and pregnancy and maternity discrimination (s.17).

The following are all statutory exceptions under the Equality Act 2010.

13.7 It is not a breach of the Act, as it applies to services, public functions and associations, to do anything that is required because of other legislation or another measure in relation to certain protected characteristics (explained in paragraph 13.8) (Sch. 22 para 1).

13.8 There are different exceptions, depending on who has the obligation and the relevant protected characteristic in a particular situation. These are set out in this table.

13.9 An enactment means:

• an Act of Parliament or of the Scottish Parliament
• an Act or Measure of the Senedd Cymru / Welsh Parliament
• orders and regulations made under or for the purpose of such Acts or Measures
• Measures of the General Synod of the Church of England

13.11 A requirement or condition in this context is one that is made by virtue of an enactment by:

• a Minister of the Crown
• a member of the Scottish Executive
• the Senedd Cymru / Welsh Parliament or the Welsh Ministers
• the First Minister for Wales or the Counsel General to the Welsh Government

13.13 This exception applies to such measures regardless of when they were passed or made.

13.15 If the service provider, person exercising public functions or association could still have complied with an enactment, requirement or condition without treating someone in a way that would breach the Act, then the exception would not apply.

13.16 The Act (Sch. 23 para 1) does not prohibit the following in relation to services and public functions if done to comply with an enactment, an instrument made under an enactment, a requirement imposed under an enactment, or a Ministerial arrangement or condition:

• discrimination on the grounds of nationality
• indirect discrimination, where the provision, criterion or practice refers to a person’s ordinary place of residence or the length of time a person has been present or resident in or outside the UK or an area within it

13.17 As explained at paragraph 13.14, it is only where an obligation under the measures listed at paragraph 13.16 leaves a service provider or a person exercising public functions with no choice other than to act in a particular way [footnote 74] – in relation to a person’s nationality or residence in the UK – that the non-discrimination provisions of the Act may be overridden.

13.19 There are separate exceptions which relate to immigration functions, and these are discussed below at paragraphs 13.177 to 13.195.

13.20 The Act’s services and public functions provisions do not apply to a function of Parliament or a function exercisable in connection with official business of Parliament (Sch. 3 paras 1 and 2).

This exception also applies to any steps within the legislative process in Parliament, the Scottish Parliament or Senedd Cymru, including preparing, making or considering an Act, a Bill for an Act (or a measure in Wales) or preparing, making, confirming, approving or considering an instrument under an Act. The exclusion also covers any instrument by the General Synod, His Majesty in Council or the Privy Council.

13.21 The Act’s services and public functions provisions do not apply to a judicial function, including anything done on behalf of a person exercising a judicial function (Sch. 3 para 3).

This includes functions exercised by a person other than a court or tribunal, for example, certain functions of the Parole Board. The exclusion also covers a decision not to commence or continue criminal proceedings, and anything done in relation to that decision.

13.22 The Act does not prohibit age, disability, gender reassignment and sex discrimination in the exercise of  public functions for the purpose of ensuring the combat effectiveness of the armed forces (Sch. 3 para 4).

13.23 The Act’s (Sch. 3 para 5) services and public functions provisions do not apply to:

• the Security Service
• the Secret Intelligence Service
• the Government Communications Headquarters
• a part of the armed forces which is assisting the Government Communications Headquarters where this is required by the Secretary of State

13.24 It is not a breach of the Act to do anything that it is proportionate to do for the purpose of safeguarding national security (s.192).

13.25 This exception applies on a case-by-case basis. To be lawful, the particular act must be a proportionate means of safeguarding national security.

13.26 Service providers, persons exercising public functions and associations should be aware that action that may be proportionate in one situation or at one time may not be proportionate in a different situation or at a different time.

13.27 For example, at a time of heightened national security risks, imposing a blanket ban on all persons of a particular nationality using public transport is unlikely to meet the test of proportionality. However, at such times, conducting intelligence-led surveillance of particular individuals who have that nationality may be proportionate. When the security situation improves, it may no longer be proportionate to maintain such surveillance for safeguarding national security.

13.28 It is not a breach of the Act, as it applies to services, public functions and associations, for a religious or belief organisation to restrict services, membership and other activities if certain conditions are met (Sch. 23 para 2).

This exception only applies to the protected characteristics of religion or belief and sexual orientation.

13.29 As explained in paragraph 13.5, the prohibition of harassment does not apply where the conduct relates to the protected characteristics of sexual orientation or religion or belief (s.103(2)).

13.30 A religious or belief organisation is an organisation whose purpose is one of the following (Sch. 23 para 2(1)):

• to practise or advance a religion or belief or to teach its practices or principles
• to enable persons of a religion or belief to receive any benefit or engage in any activity within the framework of that religion or belief, or
• to foster or maintain good relations between persons of different religions or beliefs

13.31 This exception does not apply to an organisation whose sole or main purpose is commercial (Sch. 23 para 2(2)).

13.33 In the case of religion or belief (Sch. 23 para 2(6)), each of the restrictions (read paragraph 13.31) is only permitted if imposed:

• because of the purpose of the organisation, or
• to avoid causing offence, on the grounds of the religion or belief to which the organisation relates, to persons of that religion or belief

13.34 In the case of sexual orientation (Sch. 23 para 2(7)), each of the restrictions (read paragraph 13.31) is only permitted if imposed:

• because it is necessary to comply with the doctrine of the organisation, or
• to avoid conflict with the strongly held religious convictions (or convictions relating to a belief) of a significant number of the followers of the religion or belief

13.35 In relation to religion or belief and sexual orientation (Sch. 23 para 2(3)), provided that one of the statutory conditions in paragraph 13.29 or paragraph 13.30 is met, the Act permits a religious or belief organisation to restrict:

• membership
• participation in activities undertaken by or on behalf of the organisation or under its auspices
• the provision of goods, facilities or services in the course of such activities
• the use or disposal of premises owned or controlled by the organisation

13.37 In relation to religion or belief and sexual orientation, the Act permits a person to do any of the actions set out in paragraph 13.31 on behalf of, or under the auspices of, a religious or belief organisation, provided that one of the statutory conditions in paragraph 13.29 or paragraph 13.30 is met (Sch. 23 para 2(4)).

13.38 Provided that one of the statutory conditions in paragraph 13.29 or paragraph 13.30 is met, it is not a breach of the Act in relation to religion or belief and sexual orientation (Sch. 23 para 2(5)) for a minister to restrict:

• participation in activities carried out in the performance of their functions as a minister connected with a religious organisation
• the provision of goods, facilities or services in the delivery of such activities

For the purposes of this exception, the Act (Sch. 23 para 2(8)) defines a minister as a minister of religion or other person who:

• performs functions in connection with the religion or belief of the organisation, and
• holds an office or appointment or is accredited, approved or recognised for the purposes of the organisation

13.39 Sexual orientation discrimination remains unlawful in relation to a service or public function which is provided by a religious or belief organisation on behalf of one of the public authorities listed in Schedule 19 of the Act, if that provision is under a contract with that authority. This includes arrangements where an organisation carries out a task that the public authority would otherwise have been required to do (Sch. 23 para 2(10)). The contractual relationship does not need to be one of principal and agent [footnote 75].

13.41 Sexual orientation discrimination also remains unlawful in relation to a religious or belief organisation that is only potentially within the scope of this exception because its purpose (as described in paragraph 13.26) is solely to foster or maintain good relations between persons of different religions or beliefs (Sch. 23 para 2(11)).

13.42 The Act contains an exception where a person employs or offers contract work to someone who is not ordinarily resident in Great Britain and the sole or main purpose of that work is to provide training (Sch. 23 para 4(1)). The exception applies where the person who employs or offers contract work to an employee or contractor thinks that they do not intend to use skills they obtain as a result of their employment or contract work in Great Britain.

13.43 In these circumstances, it is not a breach of the Act for a person to provide an employee or contractor with access to facilities for education or training or ancillary benefits, whether in connection with employment, contract work or anything else (Sch. 23 para 4(3)). This exception only applies in relation to the individual’s nationality.

13.45 The Act (s.193(1) to (2) and s.194(1) and (4)) does not prohibit a person from providing benefits only to people who share a protected characteristic if this is in accordance with a charitable instrument that establishes or governs a charity, and is either:

• a proportionate means of achieving a legitimate aim, or
• for the purpose of preventing, or compensating for, a disadvantage linked to that protected characteristic

13.46 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 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 also be a charter, an Act of Parliament or other document, or a combination of two or more documents.

13.48 This exception does not permit a charity to limit a group of people who are to receive benefits by colour (s.194(2) and s.193(4)). If the charitable instrument seeks to enable benefits to be provided to a group of persons defined by colour, then it will be treated as if that definition did not exist. In this situation:

• if the group of persons to receive benefits is defined only by colour, the charitable instrument will be applied as if it enabled benefits to be provided to all persons generally
• if the group of persons to receive benefits is defined partly by colour, the charitable instrument will be applied as if it enabled benefits to be provided to the group of persons without reference to colour

13.51 The charity and its trustees must initially consider whether restricting the benefits of a charity to people who share a protected characteristic meets either of the Act’s two tests in paragraph 13.41. Where the charity is challenged, then this question would ultimately be decided by the courts.

13.52 The ‘public benefit test’ that all charities must satisfy to gain charitable status may assist, but it 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 regarding beneficiaries in the charitable instrument, and whether any such restriction can be justified, when assessing whether the aims of a charity meet the ‘public benefit’ test.

Proportionate means of achieving a legitimate aim

13.53 The requirements for showing that a restriction is a proportionate means of achieving a legitimate aim is discussed in general terms at paragraphs 5.52 to 5.58.

In the case of a body with charitable status, the restriction would need to promote, or in any event not inhibit, the fulfilment of one of its stated aims. A charity is permitted to apply a clearly defined rule to those who will and will not receive its benefits, and the reduced administrative cost associated with such a rule is relevant when considering the proportionality of the restriction [footnote 76].

13.54 To be proportionate, the impact of the restriction in furthering the aim in question should be balanced against its effect on those who are excluded from receiving benefits [footnote 77]. This should be assessed on a group basis rather than an individual basis, by comparing the advantages for groups covered by the restriction with the disadvantages for groups that fall outside it [footnote 78].

Preventing or compensating for disadvantage linked to the protected characteristic

13.55 To show that restricting its benefits to people who share a protected characteristic is for the purpose of preventing or compensating for a disadvantage linked to that protected characteristic, the charity will need to demonstrate a reasonable connection between the past or current disadvantage experienced by this group and the benefits provided by the charity.

As discussed in paragraph 5.20, disadvantage can include:

• lack of opportunity
• lack of choice
• exclusion or rejection from, or barriers to, accessing services, education or employment

The disadvantage may be obvious and well-known or may be known to the charity through its funded research or evidence from other sources. The benefits the charity provides should be capable of making a difference in terms of overcoming the disadvantage linked to the protected characteristic.

13.57 There is no requirement that a charity must provide benefits to the most disadvantaged group or assess the relative disadvantage of different groups. The Act only requires that, if a charity provides benefits to a group of people who share a protected characteristic to the exclusion of others, it must be able to show that the purpose of restricting benefits in this way is to prevent or compensate for disadvantage experienced by members of that selected group or groups.

13.59 Charities whose aims include provision of benefits only to persons who share a protected characteristic should keep their aims under review to ensure that the restrictions remain lawful under the Act.

13.61 If a charity has, continuously from a date before 18 May 2005, required members or prospective members to make a statement that asserts or implies membership or acceptance of a religion or belief, the Act allows it to continue to do so (s.193(5) and (6)). If a charity restricts its members’ access to a benefit, facility or service to those who make such a statement, this is treated as imposing such a requirement.

13.62 It is not a breach of the Act, as it applies to services and public functions, to restrict participation in activities to only persons of one sex where those activities are carried out for the purpose of promoting or supporting a charity (s.193(7)). An example would be a women-only sponsored swim to raise money for a charity.

13.63 The Act includes three types of exceptions that may apply in relation to a competitive sport, game or other competitive activity (s.195).

Competitive sport – sex and gender reassignment

13.64 It is not a breach of the Act for a person to organise separate competitive sporting events for men and for women in specific circumstances (s.195(1) and (3)). These are where an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina, or physique.

13.65 This means that organising single sex or separate sex events for men and women is permitted in a sport, game or other competitive activity, where an average person of one sex is at a disadvantage compared to an average person of the other sex, due to differences in physical strength, stamina, or physique. Where there is no disadvantage due to these factors, organising separate events will be unlawful.

13.67 This exception also applies to children’s sport (s.195(4)). However, organisers must consider whether there are significant differences in physical strength, stamina or physique at the age and stage of development of the children competing in the activity.

13.69 The Act permits service providers and those exercising public functions to restrict participation of a trans person in competitive sports, games, or other activities where an average person of one sex is at a disadvantage compared to an average person of the other sex, due to differences in physical strength, stamina, or physique (s.195(2)).

13.70 Trans persons can only be excluded from competing in the activities described at 13.65 where it is necessary to restrict their participation for reasons of fair competition or the safety of competitors. This could include restricting participation directly, or by implementing policies requiring physiological characteristics, such as certain testosterone levels, which may in practice primarily impact trans persons.

13.71 This means that organisers can prevent trans persons from participating in a single sex sporting activity with persons of the opposite birth sex, if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants. Where these factors do not apply, the exception cannot be relied on and any restrictions on their participation will be unlawful.

13.73 It will often be necessary for organisations to develop general policies to guide and inform their decision making in this area. Policies should be supported by a clear rationale and evidence base and will often wish to draw upon guidance from sporting authorities. Relevant factors may include:

• whether an activity is primarily competitive or social and recreational and whether it is elite or mass participation. These factors may be significant in determining the relative weight given to inclusion, fairness and safety
• whether there are specific risk factors such as those arising from physical contact
• the extent to which there are competitive advantages arising from factors such as physical strength, stamina or physique
• whether such competitive advantage can be sufficiently reduced through medical intervention (such as drugs to reduce levels of testosterone) to make the competition fair

Competitive sport – nationality, birthplace etc

13.75 The Act (s.195(5) to (6)) does not prohibit anything which is done because of a person’s nationality or place of birth or how long that person has lived in a particular area or place, and which applies to:

• selecting one or more persons to represent a country, place or area or a related association in a sport, game or other competitive activity
• complying with eligibility rules for participation in that activity

Competitive sport – age

13.76 The Act does not prohibit age discrimination where a person does anything in relation to the participation of an individual as a competitor in competitive activities that are ‘age banded’ (s.195(7)).

13.77 This exception can be used by any individual or body involved in any aspect of the competitive activity, for example coaching, umpiring, refereeing, organising or training.

13.78 The action taken by the individual or body in relation to the participation of a competitor must be necessary to:

• secure a fair competition
• ensure the safety of competitors
• comply with the rules of a national, or international competition
• increase participation in that activity

Definition of an 'age banded activity'

13.79 An ‘age banded activity’ means a sport, game or other competitive activity where the physical or mental strength, agility, stamina, physique, mobility, maturity or manual dexterity of average persons of a particular age group would put them at a disadvantage compared to average persons of another age group when competing in events involving the activity (s.195(8)). This applies to physical activities such as athletics as well as primarily non-physical activities such as bridge or chess.

13.81 The Act contains specific exceptions discussed below which allow service providers and in certain cases those exercising public functions to provide services:

• separately for women and men
• exclusively for women
• exclusively for men
• only for persons who share a protected characteristic
• to people of a particular age group

13.82 The Act also contains an exception which allows associations to restrict membership to persons who share a protected characteristic. This is discussed at paragraphs 12.66 to 12.72.

In addition, the Act contains an exception which allows associations to restrict access to communal accommodation. This is explained at paragraphs 13.124 to 13.129.

Separate services for women and men

13.83 The Act does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) offers separate services for men and women in specific circumstances.

13.84 It is only lawful to provide a separate-sex service if:

1. a joint service would be less effective, and
2. providing the service separately is a proportionate means of achieving a legitimate aim (Sch. 3 para 26(1))

13.85 If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination.

13.86 A legitimate aim could include ensuring the health and safety of some or all people using the services. Service providers would have to be able to show that their action is a proportionate way to achieve that aim. This would require balancing the impact of providing services separately on all those using the services.

13.88 The Act (Sch. 3 para 26(2)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions (s.31(3)) provides separate services for each sex in a different way, if:

• a joint service for persons of both sexes would be less effective
• the extent to which the service is required by one sex makes it not reasonably practicable to provide the service other than separately and differently for each sex, and
• the limited provision of the service is a proportionate means of achieving a legitimate aim

13.90 The Act also does not prohibit sex discrimination where a person exercising public functions does anything in relation to the provision of separate services, or services provided differently for women and men, for the reasons set out above (Sch. 3 para 26(3)).

Single-sex services

13.92 The Act (Sch. 3 para 27) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides a service exclusively to one sex, if to do so is a proportionate means of achieving a legitimate aim, and at least one of the conditions in paragraphs 13.93 to 13.103 applies.

13.93 (1) Only people of that sex need the service.

13.95 (2) A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.

13.97 (3) A service provided for men and women jointly would not be as effective, and the demand for the services makes it not reasonably practicable to provide separate services for each sex.

13.99 (4) The service is provided at a hospital or other place where users need special care, supervision or attention.

13.101 (5) The service is for, or is likely to be used by, more than one person at the same time, and a woman might reasonably object to the presence of a man, or vice versa.

13.103 (6) The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the user is of the opposite sex.

13.105 The objections in (5) and (6) must be ‘reasonable’. Limited and non-intimate physical contact is unlikely to justify separate provision in relation to (6), for instance. For example, the fact that in first aid training there may be some physical contact between participants in the classes is unlikely to warrant the provision of single-sex sessions.

13.106 Similarly, where a person exercising public functions does anything in relation to the provision of single-sex services, this will be lawful provided that one of the conditions (1) to (6) is met, and that such a provision of the service is a proportionate means of achieving a legitimate aim.

13.107 Whether providing separate-sex or single-sex services, service providers must be able to demonstrate that it is a proportionate means of achieving a legitimate aim. Proportionality requires that they balance the impact on all service users of providing services only to one sex or providing services separately or differently for men and women. Policies should also be applied flexibly and should consider where there are specific circumstances that may justify departure from the policy.

13.109 It is good practice to record the reasons why a decision has been taken to provide a separate or single-sex service, along with any supporting evidence.

Gender reassignment discrimination and separate and single-sex services

13.111 If a service provider (including a person providing a service in the exercise of public functions) provides single- or separate sex services for women and men, or provides services differently to women and men, they should consider their approach to trans people’s use of the service (Sch. 3 para 28).

13.112 Providers should note that for the purposes of the Act, ‘sex’ means legal sex [footnote 79]. This is a person’s sex recorded either on their birth certificate, or their Gender Recognition Certificate.

13.113 There are circumstances where a separate or single-sex service provider can prevent, limit, or modify trans people’s access to the service. This is allowed under the Act. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if the service provider cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a GRC or not.

13.114 Whether this is lawful will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. A legitimate aim could be the safety, privacy, or dignity of others.

13.116 The service provider must then show that their action is a proportionate way to achieve that aim. This requires that they consider the impact of their decision or approach on all service users, particularly those who may be disadvantaged.

13.117 Providers should balance and take account of the needs of different groups. They should consider whether the reason for preventing, limiting or modifying trans people’s access to any service outweighs any discriminatory effects of the treatment (whether the impact on trans people is outweighed by the impact on other users if trans people were fully included).

13.118 If the justification for limiting or denying trans persons’ access to the single sex service for their acquired gender does not outweigh the potential discriminatory effects, it is likely to be unlawful to do so.

13.119 If the service provider’s reason for their action does outweigh the discriminatory effects, it is likely to be lawful to exclude trans persons from the single sex service of the gender in which they present, or to modify or limit their access to the service.

13.121 It will often be necessary for service providers to have a policy setting out how single-sex services are provided to trans people. When developing a policy, it is important to consider how it may be applied flexibly, and that some specific circumstances may justify a departure from the policy. Any policy should set out clear criteria that allow a provider to consider particular circumstances as they arise.

13.122 Appropriate considerations about whether it is proportionate to exclude, modify or limit trans people’s access include where a service provider has limited resources or physical space to alter the way the service is provided, or if they are dealing with groups with particular needs; for example, victims of sexual assault.

13.123 Service providers should, in all circumstances, treat individuals with dignity and respect, and should consider a course of action which, as far as possible, balances the needs of all service users.

Communal accommodation

13.124 The Act does not prohibit sex discrimination or gender reassignment discrimination where a person does anything in relation to admitting persons to communal accommodation, or providing any benefit, facility or service linked to the accommodation (Sch. 23 para 3(1)). This exception applies if the criteria set out below at paragraphs 13.127 to 13.129 are satisfied.

13.125 ‘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 (Sch. 23 para 3(5) to (6)). It can also include:

• shared sleeping accommodation for men and for women
• ordinary sleeping accommodation
• residential accommodation, all or part of which should only be used by persons of the same sex because of the nature of the sanitary facilities serving the accommodation

13.126 A benefit, facility or service is linked to communal accommodation if it cannot be properly and effectively provided except to those using the accommodation. It can only be refused to a person if they can lawfully be refused use of the accommodation (Sch. 23 para 3(7)).

13.127 This exception only applies if the communal accommodation is managed in a way that is as fair as possible to both women and men (Sch. 23 para 3(2)).

13.128 When excluding a person from use of communal accommodation because of sex or gender reassignment, the service provider, person exercising public functions or association must consider:

• 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 for the accommodation by persons of each sex (Sch. 23 para 3(3))

13.129 Excluding a person from use of communal accommodation because of gender reassignment will only be lawful if it is a proportionate means of achieving a legitimate aim (Sch. 23 para 3(4)). The matters which a service provider, person exercising public functions or association should consider are similar to those set out in paragraphs 13.112 to 13.115.

Separate or single-sex services relating to religion

13.130 The Act does not prohibit sex discrimination in the provision of services or the exercise of public functions where a minister of religion provides separate or single-sex services (Sch. 3 para 29(1)). This exception applies if:

• the service is provided for the purposes of an organised religion
• it is provided at a place which is (permanently or temporarily) used for those purposes, and
• the limited provision of the service is necessary to comply with the doctrines of the religion, or
• the limited provision of the service is for the purpose of avoiding conflict with the strongly held religious views of a significant number of the religion’s followers

13.131 In this context, a minister is a minister of religion or other person who:

• performs functions in connection with the religion, and
• holds an office or appointment in a relevant organisation in relation to a religion, or is accredited, approved or recognised for the purposes of one (Sch. 3 para 29(2))

13.132 A relevant organisation is one whose sole or main purpose is not commercial, and which is one of the following (Sch. 3 para 29(3) to (4)):

• to practise or advance the religion
• to teach the practice or principles of the religion
• to enable persons of the religion to receive benefits, or to engage in activities, within the religion’s framework
• to foster or maintain good relations between persons of different religions

13.134 This exception does not apply to acts of worship, which are not 'services' within the meaning of the Act, so no exception is required.

13.135 This exception does not permit harassment or victimisation, which are still prohibited under the Act.

Services generally provided to persons who share a protected characteristic

13.136 The Act does not prohibit discrimination in certain cases where a service is generally provided only for people who share a protected characteristic (such as gay people or people of a particular ethnic origin) (Sch. 3 para 30).

This exception permits a service provider (including a person providing a service in the exercise of public functions) who normally provides the service for members of that group to:

• continue to provide the service in this way
• refuse to provide the service to people who are not members of that group, if the service provider reasonably thinks that it is impracticable to do so

13.137 This provision does not mean that, if a service is generally provided for persons who share a protected characteristic, all service providers must provide the service in this limited way. It simply means a service provider who normally provides a service in that way is permitted to continue to do so.

13.139 The provision does not apply to those exercising a public function that is not the provision of a service, or to associations. It does not permit harassment or victimisation, which are still prohibited under the Act.

13.140 The Act does not prohibit discrimination by service providers, those exercising public functions and associations in certain cases on the grounds of pregnancy-related health and safety concerns. These exceptions are explained in more detail below.

The exceptions apply where the service provider, person exercising public functions or association believes that there is an actual or potential health or safety risk to the pregnant woman. They do not apply to any such risks to an unborn foetus. In addition, the exceptions do not permit harassment or victimisation, which are still prohibited under the Act.

13.141 When explaining these exceptions we use the same language as the Act, which refers to discrimination against women on the grounds of pregnancy and maternity. As explained at paragraph 4.54, a trans man who becomes pregnant is likely to be protected under the protected characteristic of pregnancy and maternity [footnote 80].

13.142 The Act does not prohibit discrimination by a service provider or person exercising public functions when refusing a service to a pregnant woman on the grounds of her pregnancy if they:

• reasonably believe that providing the service would create a risk to the health or safety of the woman because of her pregnancy, and
• refuse to provide the service to people with other physical conditions because of a reasonable belief that providing the service would create a risk to their health or safety (Sch. 3 para 14(1))

13.144 Similarly, the Act does not prohibit discrimination by a service provider or person exercising public functions where they provide, or offer to provide, a conditional service to a pregnant woman on the grounds of her pregnancy if:

• the conditions are intended to remove or reduce a risk to their health or safety
• the service provider or person exercising public functions reasonably believes that providing the service without the conditions would create such a risk to their health or safety, and
• the service provider or person exercising public functions imposes conditions on providing the service to people with other physical conditions because of a reasonable belief that providing the service without such conditions would create a risk to their health or safety (Sch. 3 para 14(2))

13.145 The Act does not prohibit discrimination by an association where it applies different terms for admitting a pregnant woman as a member or associate, or inviting them as a guest (or permitting them to be invited as such) if:

• the terms include a term intended to remove or reduce a risk to the individual’s health or safety
• the association reasonably believes that without that term, admitting the person would create such a risk, and
• the association sets terms of admission for people with other physical conditions that include a term intended to remove or reduce a risk to their health or safety, because of a reasonable belief that admitting them without such a term would create a risk to their health or safety (Sch. 16 para 2(1) and (2))

13.146 Similarly, the Act does not prohibit discrimination by an association where it varies the terms of membership of a pregnant member or varies the rights of a pregnant associate, if:

• the variation to the terms or rights is intended to remove or reduce a risk to the individual’s health or safety
• the association reasonably believes that not varying the terms or rights would create such a risk, and
• the association varies the terms or rights of people with other physical conditions with the intention of removing or reducing a risk to their health or safety, because of a reasonable belief that not doing so would create such a risk (Sch. 16 para 2(5))

13.147 The Act does not prohibit discrimination by an association where it provides a pregnant member, associate or guest access to a benefit, facility or service in a different way (Sch. 16 para 2(3)), if:

• the way used by the association is intended to remove or reduce a risk to the individual’s health or safety
• the association reasonably believes that providing access in any other way would create such a risk, and
• the association provides people with other physical conditions access to a benefit, facility or service in a way that is intended to remove or reduce a risk to their health or safety, because of a reasonable belief that providing access in any other way would create such a risk

13.148 The Act does not prohibit discrimination by an association when it refuses to provide a pregnant woman access to a benefit, facility or service (Sch. 16 para 2(4)), if:

• the association reasonably believes that, because the individual is pregnant, allowing access would create a risk to their health or safety, and
• the association refuses access to the benefit, facility or service to people with other physical conditions because of a reasonable belief that allowing them access would create a risk to their health or safety

13.150 In some circumstances the Act does not prohibit discrimination in the provision of services and the exercise of public functions where the fact that a person is disabled is used as a factor in deciding whether to provide insurance services to that person and, if so, on what terms (Sch. 3 para 20A and 21). 

The Act also does not prohibit discrimination in some circumstances where a person’s age is used as a factor in the provision of insurance and other financial services (Reg. 3 Equality Act 2010 (Amendment) Regulations 2012/2992). These exceptions are explained in more detail below.

For contracts entered into before 21 December 2012, the Act does not prohibit sex, gender reassignment and pregnancy and maternity discrimination.

Disability

13.151 The Act does not prohibit disability discrimination in relation to anything in connection with insurance business (Sch. 3 para 21) if:

• it is done based on information which is relevant to the assessment of the risk to be insured
• the information is from a reliable source, and
• it is reasonable to do so

This exception does not, however, permit harassment or victimisation, which are still prohibited under the Act.

13.152 ‘Insurance business’ means business consisting of effecting or carrying out contracts of insurance. This includes buying, selling, subscribing for or underwriting a contract of insurance, or offering or agreeing to do so, and carrying out a contract of insurance, as a principal or as an agent (read s.22 and Schedule 2 of the Financial Services and Markets Act 2000).

This exception applies to anyone involved in ‘insurance business’ in any aspect of selling insurance or writing the terms on which a disabled person can be insured against certain risks.

13.153 Information which might be relevant to the assessment of the risk to be insured includes actuarial or statistical data or a medical report.

The exception would not permit an insurer to rely on untested assumptions, stereotypes or generalisations in respect of a disabled person.

13.154 The following additional factors may be relevant to determining whether the information comes from a source on which it is reasonable to rely:

• whether the information is up to date
• where data is involved, the method of collection is suitable
• whether the information is representative
• whether the information is credible (for example, it is generally accepted by the scientific or actuarial community)

Life and income protection insurance

13.156 The UK government, the Association of British Insurers (ABI) and the British Insurance Brokers' Association (BIBA) have a voluntary agreement in place that applies when service providers refuse critical illness insurance, income protection or life insurance to an individual because they have a pre-existing medical condition or disability. The agreement obliges service providers to:

• refer the individual to another company that can help, or
• direct the individual to a signposting system, which should be able to identify more suitable service providers

13.157 Here is the BIBA signposting service.

13.158 Signposting an individual does not mean that an insurer will have complied with their obligations under the Act, that they will have been justified in refusing to provide a service, or that they can avoid liability for breaches of the Act.

Age

13.159 The Act does not prohibit age discrimination in relation to anything in connection with providing a financial service (Sch. 3 para 20A).

This would include services of a banking, credit, insurance, personal pension, investment or payment nature. Some examples are:

• mortgages
• annuities
• current accounts and savings accounts
• cheque cashing services
• loans
• bank overdrafts
• credit cards and charge cards
• debt advice and debt management services
• e-money services
• equity release
• fraud and credit scoring used by financial services companies
• spread betting services
• investment advice

This is not an exhaustive list.

13.160 However, where a financial services provider carries out a risk assessment which considers the age of the service user, it will only be able to rely on this exception (Sch. 3 para 20A (2)) if:

• the information used for the risk assessment is relevant, and
• the information comes from a source on which it is reasonable to rely

13.161 This might apply, for example, in deciding what premium to charge a customer for motor or travel insurance.

Information which might be relevant to the risk assessment includes actuarial or statistical data, future projections or a medical report. It cannot include untested assumptions, stereotypes or generalisations in respect of age.

13.162 Additional factors that may be relevant are set out in paragraph 13.151.

13.164 This exception applies to service providers and those exercising public functions. It does not permit harassment or victimisation, which are always unlawful.

Travel and motor insurance

13.166 The UK government, the Association of British Insurers (ABI) and the British Insurance Brokers’ Association (BIBA) have a voluntary agreement in place that applies when service providers refuse travel and motor insurance to an individual because their age falls above the upper age limit for the product. The agreement obliges service providers to:

• refer the individual to another company that can help, or
• direct the individual to a signposting system, which should be able to identify more suitable service providers

13.167 Here is the BIBA signposting service.

13.168 Signposting an individual does not mean that an insurer will have complied with their obligations under the Act. Nor does it mean that they will have been justified in refusing to provide a service or that they can avoid liability for breaches of the Act.

Existing insurance policies

13.169 The Act also contains an exception for insurance policies which came into existence before Schedule 3 paragraph 23 came into force (referred to below as an ‘existing insurance policy’) (Sch. 3 para 23).

13.170 The Act does not prohibit discrimination in relation to anything in connection with insurance business relating to an existing insurance policy. ‘Insurance business’ has the same meaning as explained in paragraph 13.152.

13.171 This exception does not, however, permit harassment or victimisation, which are still prohibited under the Act.

13.172 Existing insurance policies may continue without need for change until they are renewed through a new contract or have their terms reviewed so as to amend an existing contract [footnote 81], on or after 1 October 2010. This exception would then no longer apply and any discrimination would only be lawful if the relevant conditions set out in paragraphs 13.150 to 13.165 are met.

13.173 It is not a breach of the Act, as it applies to services and public functions, to provide certain financial services arranged by an employer (Sch. 3 para 20).

13.174 This exception applies if the financial services are provided pursuant to an arrangement between an employer and a service provider to provide the service to the employer’s employees as a consequence of their employment.

13.175 The financial services are:

• insurance or a related financial service
• a service relating to membership of or benefits under a personal pension scheme

13.176 An employer could still be liable for breaching the Act in the provision of such financial services under Part 5 where applicable. This is outside the scope of this Code.

13.177 Where certain immigration decisions are made and certain potentially discriminatory immigration functions are carried out, the Act does not prohibit (Sch. 3 Part 4):

• age discrimination
• disability discrimination
• race discrimination (relating to nationality and ethnic or national origins only)
• religion or belief discrimination

Different conditions apply for each type of discrimination and these are explained in more detail below. The exceptions do not permit harassment or victimisation, which are still prohibited under the Act.

13.178 The exception relating to nationality discrimination authorised by statute or the executive may also be relevant in relation to immigration functions. This is explained above at paragraphs 13.16 to 13.19.

Age

13.179 The Act does not prohibit age discrimination where service providers and persons exercising public functions perform certain immigration functions (Sch. 3 para 15A).

13.180 This exception applies to anything done in the exercise of relevant functions by:

• a Minister of the Crown acting personally
• a person acting in accordance with a relevant authorisation

In this context, a Minister of the Crown ‘acting personally’ will usually include acting through their officials [footnote 82].

'Relevant functions' are functions exercisable by virtue of certain provisions which are set out in the Act at paragraph 15A(5) to (6) of Schedule 3.

13.181 A ‘relevant authorisation’ (Sch. 3 para 15A(4)) is a requirement imposed or an express authorisation given:

• in relation to a particular case or class of case, by a Minister of the Crown acting personally
• in relation to a particular class of case, by or under any relevant function

Disability 

13.183 The Act does not prohibit disability discrimination where service providers and persons exercising public functions perform certain immigration functions (Sch. 3 para 16).

13.184 This exception applies to any of the following decisions or anything done for the purpose of, or in pursuance of, any such decision, whether or not the decisions are taken in accordance with immigration rules, provided such decision is taken because it is necessary for the public good to:

• refuse entry clearance
• refuse leave to enter or remain in the UK
• cancel leave to enter or remain in the UK
• vary leave to enter or remain in the UK
• refuse an application to vary leave to enter or remain in the UK

13.185 The Act also does not prohibit disability discrimination in relation to a decision or guidance by the Secretary of State, or a decision taken in accordance with guidance by the Secretary of State, if the decision or guidance is in connection with any of the decisions set out at paragraph 13.184.

Nationality and ethnic or national origins

13.187 The Act does not prohibit race discrimination, as it relates to nationality or ethnic or national origins, where service providers and persons exercising public functions perform certain immigration functions (Sch. 3 para 17).

This exception matches the equivalent relating to age discussed in paragraphs 13.179 to 13.182. It does not apply to discrimination because of colour.

13.188 The exception applies to anything done in the exercise of relevant functions by:

• a Minister of the Crown acting personally
• a person acting in accordance with a relevant authorisation

In this context, a Minister of the Crown ‘acting personally’ will usually include acting through their officials [footnote 83].

'Relevant functions' are functions exercisable by virtue of certain provisions which are set out in the Act at paragraph 17(5) to (6) of Schedule 3.

13.189 A ‘relevant authorisation’ (Sch. 3 para 15A(4)) is a requirement imposed or an express authorisation given:

• in relation to a particular case or class of case, by a Minister of the Crown acting personally
• in relation to a particular class of case, by or under any relevant function

Religion or belief

13.191 The Act does not prohibit religion or belief discrimination where service providers and persons exercising public functions perform certain immigration functions (Sch. 3 para 18).

13.192 This exception applies to a decision taken in accordance with immigration rules, or anything done for the purpose of or in pursuance of a decision (Sch. 3 para 18(3)):

• to refuse entry clearance or leave to enter or to cancel leave to enter or remain in the UK on grounds that exclusion of the person is conducive to the public good
• to vary leave to enter or remain or to refuse to do so on grounds that it is undesirable for the person to remain in the UK

13.193 This exception also applies to a decision, or anything done for the purposes of or in pursuance of a decision, in connection with an application for entry clearance or leave to enter or remain in the UK, whether or not the decision is taken in accordance with immigration rules, provided the decision is taken because (Sch. 3 para 18(5) and (6)):

• the person holds an office or post or provides a service in connection with a religion or belief
• one religion or belief is to be treated differently from others
• the exclusion of a person who holds an office or post or provides a service in connection with religion or belief is conducive to the public good

13.194 This exception also applies to a decision taken, or guidance given, or a decision taken in accordance with guidance given, by the Secretary of State in connection with either of the decisions in paragraphs 13.192 and 13.193 (Sch. 3 para 18(7)).

13.196 The Act’s services and public functions provisions do not apply where a person takes into their home, and treats as a member of their family, someone who requires particular care and attention (Sch. 3 para 15).

13.197 This is the case whether or not the person who takes the other person into their own home is paid to do so, for example in order to provide foster care.

13.199 It is not a breach of the Act, as it applies to services and public functions, for someone operating a medical service for the collection and distribution of human blood or blood components to refuse to accept a person’s donation of blood (Sch. 3 para 13). This exception applies if:

• the refusal is because of an assessment of the risk to the public or to the person based on clinical, epidemiological or other data from a reliable source and
• the refusal is reasonable

13.200 The Act does not prohibit disability discrimination by service providers and persons exercising public functions in relation to certain transport services involving transport by air or transport by land (Sch. 3 Part 9). As explained at paragraph 3.31, this Code does not cover these provisions.

13.201 The Act contains an exception designed to protect the editorial independence of broadcasters when broadcasting or distributing content, whether on television, radio or online (Sch. 3 para 31(1)).

13.202 It is not a breach of the Act for a service provider or person exercising public functions to do anything in relation to the provision of a content service (as defined in s.32(7) of the Communications Act 2003). This covers the broadcasting, distributing and scheduling of programmes and content either on television, radio or online. It includes editorial decisions about the content as well as which programmes to commission, scheduling of programmes, or who should take part in a particular programme.

13.203 This exception does not apply to the provision of an electronic communications network, electronic communications service or associated facility as defined in s.32 of the Communications Act 2003 (Sch. 3 para 31(2)). This means that discrimination, harassment or victimisation in the activity of sending signals is not permitted under the Act, because the exception only applies to the content of what is broadcast.

13.205 An Information Society Services Provider (ISSP) is a provider which supplies services remotely, that have been requested by a user, through electronic means, which are normally provided for remuneration (read paragraph 11.77) (Sch. 25 para 7).

There are special rules about the territorial extent of the Act when a remote service is an ISSP (read paragraphs 11.79 to 11.81).

13.206 If a remote service is an ISSP and it is subject to the Act, there are exceptions that might still apply.

13.207 The three exceptions are where the ISSP:

• acts as a mere conduit
• caches information
• is a host that stores information

These exceptions are explained in more detail below.

13.208 The Act does not apply where the ISSP acts as a mere conduit (Sch. 25 para 3). A mere conduit means that the ISSP does not:

• initiate the transmission
• select the recipient or
• select or modify the information in the transmission

Acting as a mere conduit includes the automatic, intermediate, and transient storage of the information transmitted, so long as it is only stored in order to carry out the transmission and not for longer than is reasonably necessary.

13.210 The Act does not apply where the ISSP is caching only (Sch. 25 para 4). Caching refers to the strategy of an ISSP in which the ISSP keeps a copy of a page or image that an internet user has already accessed and seen. The copy is then displayed for the user each time the user subsequently refers to the same page or image rather than downloading the entire file again. Caching speeds up the user's next visit to the webpage. An ISSP can rely on the caching exemption to the Act when it:

• provides automatic, intermediate and temporary storage of information for the purpose of enabling future requests for that information to be served faster
• stores the information solely for the purpose of making more efficient the onward transmission of the information to recipients of the service at their request
• does not modify that information, and
• complies with any conditions of access to the information

This exception only applies if the ISSP also expeditiously removes or disables access to the information as soon as the ISSP is aware that:

• the information at the initial source of the transmission has been removed from the network
• access to it has been disabled, or
• a court or administrative authority has required the information to be removed from the network or for access to it to be disabled

13.212 The Act does not apply where the ISSP is hosting only (Sch. 25 para 5). Hosting is a service provided by an ISSP to a user which offers a physical location for the storage of web pages and files which can be viewed on the internet. The Act does not apply where the ISSP hosts information provided by a service user, if:

• the ISSP had no actual knowledge when the information was provided that its provision was unlawful under the Act, or
• when the ISSP actually knew the provision of the information was unlawful, it expeditiously removed the information or disabled access to it.

If the service user is acting under the control of the ISSP then this exception does not apply.

13.214 Since the Marriage (Same Sex Couples) Act 2013 in England and Wales and the Marriage and the Civil Partnership (Scotland) Act 2014 in Scotland were passed, some religious denominations allow their representatives to marry same sex couples according to their rites. Certain religious organisations also allow their representatives to conduct blessings or other rites following civil partnership ceremonies and, in Scotland, to register civil partnerships for same sex and opposite sex couples.

13.215 The Act permits religious representatives of these denominations and organisations to refuse to solemnise or otherwise take part in same sex and opposite sex marriages in certain cases. These exceptions apply where the refusal is on certain grounds, which are explained in more detail below.

13.216 The Act also permits religious representatives in certain cases to refuse to take part in events celebrating the formation of a civil partnership, in Scotland to register civil partnerships, and to refuse access to their premises for such purposes.

13.217 Religious representatives can also refuse, in certain cases, to solemnise marriages where at least one of the people marrying is trans, without breaching the Act’s prohibition on discrimination.

13.218 These exceptions apply where the refusal is on certain grounds, which are explained in more detail below.

13.219 As explained in paragraph 13.5, harassment related to the protected characteristics of religion and belief and sexual orientation are not prohibited under the Act in the areas covered by this Code.

13.220 In addition, harassment related to the protected characteristics listed in paragraph 13.5 is not prohibited under the Act in the circumstances set out below. The term ‘harassment’ is used to refer to harassment related to those protected characteristics.

England, Wales and Scotland

13.221 It is not a breach of the Act, as it applies to services and public functions, for any person or religious organisation to refuse to conduct, facilitate, attend or take part in a religious marriage ceremony of a same-sex couple, or consent to it being conducted (Sch. 3 para 25A).

This exception applies where the person’s or organisation’s refusal is for the reason that it is a same-sex marriage.

Scotland

13.222 It is not a breach of the Act, as it applies to services and public functions, for:

• an approved celebrant to refuse to solemnise a Scottish religious or belief marriage (Sch. 3 para 25B(1))
• any person to refuse to take part in a religious or belief ceremony forming part of, or connected with, the solemnising of a Scottish marriage (Sch. 3 para 25B(3))

These exceptions apply where the refusal is for the reason that it is a same-sex marriage.

13.223 An ‘approved celebrant’ is a person authorised to solemnise a Scottish marriage (s.8(2)(a) Marriage (Scotland) Act 1977).

13.224 In relation to religious or belief organisations, it is not a breach of the Act:

• in the provision of services and exercise of public functions, for an organisation to allow one of its celebrants to refuse to solemnise a marriage in this way (Sch. 23 para 2(9C))
• in the provision of services, exercise of public functions and activities of associations, for an organisation (or person or group on its behalf) to refuse to allow premises that it owns or controls to be used to solemnise a marriage for the reason that it is a same-sex marriage (Sch. 23 para 2(9A)(a) and Sch. 23 para 2(9B)(a))

England, Wales and Scotland

13.225 It is not a breach of the Act, as it applies to services and public functions, for a religious organisation or certain individuals:

• in England and Wales, to refuse to provide, arrange, facilitate, participate or be present at a ceremony or event to mark the formation of a civil partnership (Sch. 3 para 25AA(1)(b)(ii))
• in Scotland, to refuse to allow religious premises to be used to register a civil partnership (Sch. 3 para 25AA(1)(a) and (1)(b)(i))
• in Scotland, to refuse to provide, arrange, facilitate, participate or be present at the registration of a civil partnership

13.226 These exceptions apply where the refusal is for the reason that the person or organisation does not wish to be involved in such acts, either in relation to civil partnerships in general, or those that involve a same-sex couple or an opposite-sex couple.

13.227 These exceptions apply to:

• religious organisations
• a constituent body or part of a religious organisation
• a person acting on behalf or under the auspices of such an organisation, body or part thereof

They do not apply to a civil partnership registrar (Sch. 3 para 25AA(3)).

Scotland

13.228 The Act contains further exceptions specific to Scotland, where the registration of civil partnerships is permitted on religious premises and with religious ceremonies.

13.229 It is not a breach of the Act, as it applies to services and public functions, for:

• an approved celebrant to refuse to register a Scottish civil partnership (Sch. 3 para 25B(2))
• any person to refuse to take part in a religious or belief ceremony forming part of, or connected with, the registration of a Scottish civil partnership (Sch. 3 para 25B(4))

12.230 An ‘approved celebrant’ is a person authorised to register civil partnerships (s.94A(4)(a) Civil Partnership Act 2004).

13.231 These exceptions apply where the refusal is for the reason that the approved celebrant (or person) does not wish to register civil partnerships (or take part in such civil partnership ceremonies) in general, or those that involve a same-sex couple or an opposite-sex couple.

13.232 In relation to religious or belief organisations, it is not a breach of the Act:

• in the provision of services and exercise of public functions, for an organisation to allow one of its celebrants to refuse to solemnise the civil partnership in this way (Sch. 23 para 2(9C))
• in the provision of services, exercise of public functions and the activities of associations, for an organisation (or person or group on its behalf) to refuse to allow premises that it owns or controls to be used to register a civil partnership for the reason that it is between two people of the same sex or between two people of the opposite sex (Sch. 23 para 2(9A)(b) and Sch. 23 para 2(9B)(b))

Scotland

13.233 The Act contains further exceptions specific to Scotland relating to opposite-sex marriages where the couple are in an existing civil partnership with each other.

13.234 It is not a breach of the Act, as it applies to services and public functions, for:

• an approved celebrant to refuse to solemnise a Scottish marriage (Sch. 3 para 25B(1A))
• any person to refuse to take part in a religious or belief ceremony forming part of, or connected with, the solemnising of a Scottish marriage by an approved celebrant (Sch. 3 para 25B(3A))

13.235 These exceptions apply where it is a marriage of two people of the opposite sex who are in a civil partnership with each other.

13.236 In relation to religious or belief organisations, it is not a breach of the Act:

• in the provision of services and the exercise of public functions, for an organisation to allow one of its celebrants to refuse to solemnise a Scottish marriage in this way (Sch. 23 para 2(9C))
• in the provision of services, exercise of public functions and activities of associations, for an organisation (or person or group on its behalf) to refuse to allow premises that it owns or controls to be used to solemnise a Scottish marriage (Sch. 23 para 2(9A)(aa)) for the reason that it is a marriage of two people of the opposite sex who are in a civil partnership with each other (Sch. 23 para 2(9B)(aa))

England, Wales and Scotland

13.237 Where a person reasonably believes that one of a couple marrying is trans and has acquired his or her gender under the Gender Recognition Act 2004, the Act does not prohibit gender reassignment discrimination in the provision of services and exercise of public functions where that person refuses to:

• solemnise such a marriage in a registered building under section 44(1) of the Marriage Act 1949 (Sch. 3 para 24)
• solemnise such a marriage according to a form, rite or ceremony of a body of persons who meet for religious worship (Sch. 3 para 24(3) and (4))

This exception does not permit harassment or victimisation, which are still prohibited under the Act.

13.238 In England and Wales, this exception applies to those authorised by the Marriage Act 1949 to solemnise religious marriages (Sch. 3 para 24).

13.239 In Scotland, this exception applies to an approved celebrant authorised by the Marriage (Scotland) Act 1977 to solemnise a Scottish marriage (Sch. 3 para 25).

Scotland

13.240 The Act does not prohibit gender reassignment discrimination where an approved celebrant refuses to register a Scottish civil partnership if they reasonably believe that one of a couple marrying is trans and has acquired his or her gender under the Gender Recognition Act 2004 (Sch. 3 para 25(3)). 

13.241 An ‘approved celebrant’ is a person authorised to register civil partnerships (s.94A(4)(a) Civil Partnership Act 2004).

13.242 Four age-specific exceptions are discussed in paragraphs 13.242 to 13.296. For the purposes of all the exceptions, the term ‘age discrimination’ means direct age discrimination and indirect age discrimination only. These exceptions do not apply to harassment or victimisation, which are still prohibited under the Act.

Concessionary services

13.243 The Act does not prohibit age discrimination where a service provider or person exercising public functions gives a concession to people of a particular age (Sch. 3 para 30A).

What is a concession?

13.244 A concession is:

• a benefit, right or privilege making the manner in which the service is provided more favourable than the way it is usually provided to the public or a section of the public, or
• a benefit, right or privilege making the terms on which a service is provided more favourable than the terms on which it is usually provided to the public or section of the public (Sch. 3 para 30A(2))

13.245 ‘Benefit’ might include reduced costs. ‘Rights and privileges’ cover entitlements as well as preferential treatment afforded to individuals.

13.246 ‘Manner’ is the way in which the service is provided. An example of such a concession might be ‘out of hours’ provision for certain age groups, such as later than usual in the evening, or earlier in the morning.

13.247 The ‘terms’ on which a service is provided refer to what is agreed about the provision of the service between the service provider or person exercising public functions and the individual using the service. The terms will include the conditions of the service and the charge to the individual.

13.248 This means that a service provider or person exercising public functions can offer more favourable treatment to people of particular age groups. There is no need to show that a concession is a proportionate means of achieving a legitimate aim, so long as it meets one of the criteria set out above.

13.251 A service provider or person exercising public functions may give such favourable treatment to one age group that a different age group is effectively excluded from receiving this service. In this situation, the exception will only apply where the concession is the reason for the treatment.

13.253 If the treatment amounts to harassment or victimisation it would also not be permitted by the exception for concessions.

13.255 Service providers and those exercising public functions should be aware that a concession may indirectly discriminate against people who share a protected characteristic other than age. In such a case, unless the treatment can be objectively justified then it would be unlawful.

Package holidays

13.257 The Act does not prohibit age discrimination where a service provider or person exercising public functions provides a ‘relevant holiday service’ to people of a particular age group (Sch. 3 para 30(B)).

13.258 Holiday companies, hotels, and owners / letting agents of holiday cottages / chalets may be covered by this exception if they provide ‘relevant holiday services’.

13.259 A local authority providing holidays for particular age groups might also fall within this exception.

13.260 If a holiday falls outside this exception, the provider may still be able to objectively justify any age discrimination.

13.261 Because the ban on age discrimination in the provision of services does not extend to under 18s, excluding children from holiday services will not amount to age discrimination of the children.

When does the exception apply?

13.262 This exception only allows discrimination in relation to a decision about whether or not to provide a person with a ‘relevant holiday service’. It does not extend to other related matters such as the terms on which the service is provided or a decision to terminate it.

13.264 A ‘relevant holiday service’ means a service where:

• a person pays a single price for at least two of the following: travel; accommodation; access to activities or services forming a significant part of the service or its cost
• the holiday is for more than 24 hours or includes overnight accommodation
• the holiday is provided only to people in a certain age group, and
• an essential feature of the holiday is bringing together people in that age group with a view to facilitating their enjoyment of facilities or services designed with particular regard to people of that age group

The different elements of this definition are explained in more detail below.

13.265 The exception will only apply if the service provider or person exercising public functions provides the individual with a written statement before the start of the holiday to explain that the holiday service is only available to people of a particular age group.

13.266 The service provider or person exercising public functions must provide the holiday only to individuals of a particular age group.

13.268 An essential element of the holiday must be that people in the same age group are brought together:

• with the intention of helping them to enjoy facilities or services, and
• in circumstances where those facilities or services have been designed with that age group particularly in mind

13.270 The price of the holiday must include at least two of the following:

• travel (even if there is an option for the service user to make alternative travel arrangements)
• accommodation
• access to activities or services not ancillary to travel or accommodation, which form a significant part of the service or its cost

13.272 To fall within the exception, the individual must pay a single price for the holiday as a package.

Age-restricted services

13.274 The Act does not prohibit age discrimination where a service provider or person exercising public functions refuses to provide certain services which are age-restricted by legislation where certain conditions are met (Sch. 3 para 30C). This would include selling alcohol, cigarettes or fireworks.

13.275 It can be difficult to accurately assess the age of customers. For this reason, all providers of age-restricted services should ensure that they adhere to the Act when asking for age verification where it appears to them that a customer may be under the legal age limit.

13.276 Because the ban on age discrimination in the provision of services does not extend to under 18s, it will not be unlawful to deny an age-restricted service to a child. However, where a customer is 18 or over but is refused such a service because they appear to the service provider or person exercising public functions to be under 18, the age discrimination provisions would apply and the refusal could be unlawful unless the exception applies.

When does the exception apply?

13.277 It will not be age discrimination where an individual is denied an age-restricted service in the following circumstances:

• there has been an age warning
• it appears to the service provider (or person exercising public functions), its employees or agents that the individual is under the age specified in the age warning, and
• the individual is not able to provide satisfactory identification proving otherwise (Sch. 3 para 30C(2))

13.278 An ‘age warning’ means that the service provider or person exercising public functions has displayed a statement at the premises where the age-restricted service is provided. The statement must explain that, in the absence of satisfactory identification, the age-restricted service will not be provided to individuals who appear to the service provider, its employees or agents to be under the age specified in the statement (Sch. 3 para 30C(1)(b)).

13.280 It is good practice for a service provider or person exercising public functions to ensure that the display is readily and easily visible to individuals in a public area.

13.281 If the age-restricted service relates to licensed premises within the meaning of s.19A of the Licensing Act 2003, then satisfactory identification means a valid document which includes the person’s:

• photograph
• date of birth, and
• a holographic mark

A passport or driving licence would fall into this category (s.19A Licensing Act 2003 The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 Schedule, para 3(3)).

13.282 In all other cases, satisfactory identification means a valid document that includes a photograph of the person and proves that they are not under-age. A Citizen Card would fall into this category (Sch. 3 para 30C(4)(b)(ii)).

13.283 The exception applies to the actual provision or refusal of a service or provision of access to a service. It does not extend to other related matters such as the manner in which the service is provided (Sch. 3 para 30C(4)(a)).

13.285 Where a service provider or person exercising public functions asks for age verification in circumstances outside this exception, it may still be possible for them to objectively justify any age discrimination.

Residential mobile homes

13.286 The Act does not prohibit age discrimination by a service provider or person exercising public functions in certain circumstances relating to residential mobile homes (Sch. 3 para 30D).

When does the exception apply?

13.287 The exception applies in relation to the owners of ‘protected sites’ within the meaning of the Mobile Homes Act 1983, where the rules for the site specify an age restriction. It covers situations where mobile homes are brought onto, or bought on, a protected site or are rented out by the owner of the protected site.

13.288 A ‘protected site’ is any site requiring a site licence, except where the licence (or planning consent):

• permits holiday use alone, or
• prohibits the stationing of mobile homes for residential use for certain times of the year

In addition, local authority sites and certain sites for Gypsies and Travellers that are for residential use all year meet the definition of ‘protected site’ (although such sites do not require a licence).

13.289 The Act does not prohibit age discrimination where the owner of a protected site:

• enters into a mobile home agreement with someone, where a park rule that is a term of that agreement entitles only people who have reached a particular age to station and occupy a mobile home on the site
• refuses to permit a person to assign a mobile home agreement to anyone who has not reached a particular age (Sch. 3 para 30D(1))

13.290 A ‘mobile home agreement’ means an agreement to which the Mobile Homes Act 1983 or Part 4 of the Mobile Homes (Wales) Act 2013 applies. This includes any agreement permitting a person to station a mobile home on a ‘protected site’ and to occupy the mobile home as their only or main residence (Sch. 3 para 30D(5)).

13.291 The Act also does not prohibit age discrimination where the owner:

• enters into a mobile home rental agreement with a person which imposes a requirement that the mobile home in question may be occupied only by people who have attained a particular age, or
• refuses to permit a person to assign a mobile home rental agreement to anyone who has not reached a particular age (Sch. 3 para 30D(3))

13.292 A ‘mobile home rental agreement’ means an agreement that entitles a person to occupy a mobile home on the ‘protected site’ as their residence in exchange for the payment of money and the performance of other obligations. The agreement may be for a specified period or for successive periods of a specified duration. An arrangement to occupy a mobile home for a holiday does not qualify as a mobile home rental agreement (Sch. 3 para 30D(5)).

13.293 If the owner wishes to rely on either of these two provisions, they must first provide the person concerned with a written statement that specifies that the mobile home may be occupied only by people who have reached the relevant age (Sch. 3 para 30D(4)).

13.294 The Act also does not prohibit age discrimination where the owner imposes a requirement in park rules that mobile homes stationed on the site and occupied under mobile home agreements may be occupied only by people who have reached a particular age (Sch. 3 para 30D(2)).

13.295 ‘Park rules’ refer to rules (made in compliance with relevant legislation) which apply to residents of mobile homes on the protected site, and which, under the mobile home agreement or the mobile home rental agreement, must be observed (Sch. 3 para 30D(5)).

74. Hampson v Department of Education and Science [1991] 1 AC 171
75. R (on the application of Cornerstone (North East) Adoption and Fostering Service Ltd) v Office for Standards in Education Children's Services and Skills, [2020] EWHC 1679 (Admin)
76. R (Z) v Hackney LBC [2020] 1 W.L.R. 4327 (SC)
77. Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales [2013] 1 WLR 2105 and R (Cornerstone) v OFSTED [2021] EWCA Civ 1390
78. R (Z) v Hackney LBC [2020] 1 WLR 4327 (SC)
79. For Women Scotland v The Scottish Ministers [2023] CSIH 37 P578/22
80. For Women Scotland v The Scottish Ministers [2023] CSIH 37 P578/22
81. The Royal London Mutual Insurance Society Ltd [2018] EWHC 2215 (Ch) at [33]-[59]
82. Carltona Ltd v Commissioners of Works and Others [1943] 2 All ER 560 and R (on the application of Goloshvili ) v Secretary of State for the Home Department (Liberty intervening) [2019] EWHC 614 (Admin) at [52]
83. Carltona Ltd v Commissioners of Works and Others [1943] 2 All ER 560 and R (on the application of Goloshvili ) v Secretary of State for the Home Department (Liberty intervening) [2019] EWHC 614 (Admin) at [52]