Citation, commencement and extent

1.—(1) These Regulations may be cited as the Equality Act (Sexual Orientation) Regulations 2007 and shall come into force on 30th April 2007.

(2) These Regulations do not extend to Northern Ireland.

Interpretation

2.—(1) References in these Regulations to discrimination are to any discrimination falling within regulation 3 (discrimination on grounds of sexual orientation) and related expressions shall be construed accordingly.

(2) In these Regulations—

“the Commission” means the Commission for Equality and Human Rights,

“criminal investigation” means an investigation into the commission of an alleged offence, and a decision whether to institute criminal proceedings,

“enactment” includes an enactment in or under an Act of the Scottish Parliament,

“fostering agency” means a fostering agency within the meaning of section 4(4) of the Care Standards Act 2000(2) and a person providing a fostering service within the meaning of section 2(14)(b) of the Regulation of Care (Scotland) Act 2001(3),

“the 2006 Act” means the Equality Act 2006,

“voluntary adoption agency” means an adoption society within the meaning of the Adoption and Children Act 2002(4) which is a voluntary organisation within the meaning of that Act, and a person, providing an adoption service within the meaning of section 2(11)(b) of the Regulation of Care (Scotland) Act 2001(5).

(3) In these Regulations—

(a) a reference to act or action includes a reference to deliberate omission,

(b) a reference to refusal includes a reference to deliberate omission, and

(c) a reference to providing a service, facility or benefit of any kind includes a reference to facilitating access to the service, facility or benefit.

Discrimination on grounds of sexual orientation

3.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

(2) In paragraph (1) a reference to a person’s sexual orientation includes a reference to a sexual orientation which he is thought to have.

(3) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if A applies to B a provision, criterion or practice—

(a) which he applies or would apply equally to persons not of B’s sexual orientation,

(b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),

(c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and

(d) which A cannot reasonably justify by reference to matters other than B’s sexual orientation.

(4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.

(5) A person (“A”) discriminates against another (“B”) if A treats B less favourably than he treats or would treat another and does so by reason of the fact that, or by reason of A’s knowledge or suspicion that, B—

(a) has brought or intended to bring, or intends to bring, proceedings under these Regulations,

(b) has given or intended to give, or intends to give, evidence in proceedings under these Regulations,

(c) has provided or intended to provide, or intends to provide, information in connection with proceedings under these Regulations,

(d) has done or intended to do, or intends to do, any other thing under or in connection with these Regulations, or

(e) has alleged or intended to allege, or intends to allege, that a person has contravened these Regulations.

(6) Paragraph (5) does not apply where A’s treatment of B relates to B’s—

(a) making or intending to make, not in good faith, a false allegation; or

(b) giving or intending to give, not in good faith, false information or evidence.

Goods, facilities and services

4.—(1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services—

(a) by refusing to provide B with goods, facilities or services,

(b) by refusing to provide B with goods, facilities or services of a quality which is the same as or similar to the quality of goods, facilities or services that A normally provides to—

(i) the public, or

(ii) a section of the public to which B belongs,

(c) by refusing to provide B with goods, facilities or services in a manner which is the same as or similar to that in which A normally provides goods, facilities or services to—

(i) the public, or

(ii) a section of the public to which B belongs, or

(d) by refusing to provide B with goods, facilities or services on terms which are the same as or similar to the terms on which A normally provides goods, facilities or services to—

(i) the public, or

(ii) a section of the public to which B belongs.

(2) Paragraph (1) applies, in particular, to—

(a) access to and use of a place which the public are permitted to enter,

(b) accommodation in a hotel, boarding house or similar establishment,

(c) facilities by way of banking or insurance or for grants, loans, credit or finance,

(d) facilities for entertainment, recreation or refreshment,

(e) facilities for transport or travel, and

(f) the services of a profession or trade.

(3) Paragraph (1) does not apply —

(a) in relation to the provision of goods, facilities or services by a person exercising a public function, or

(b) to discrimination in relation to the provision of goods, facilities or services, where such discrimination—

(i) is unlawful by virtue of another provision of these regulations or by virtue of a provision of the Employment Equality (Sexual Orientation) Regulations 2003(6) (“the 2003 Regulations”), or

(ii) would be unlawful by virtue of another provision of these Regulations or of the 2003 Regulations but for an express exception.

(4) For the purposes of paragraph (1) it is immaterial whether or not a person charges for the provision of goods, facilities or services.

Premises

5.—(1) It is unlawful for a person to discriminate against another—

(a) in the terms on which he offers to dispose of premises to him,

(b) by refusing to dispose of premises to him, or

(c) in connection with a list of persons requiring premises.

(2) It is unlawful for a person managing premises to discriminate against an occupier—

(a) in the manner in which he provides access to a benefit or facility,

(b) by refusing access to a benefit or facility,

(c) by evicting him, or

(d) by subjecting him to any other detriment.

(3) It is unlawful for a person to discriminate against another by refusing permission for the disposal of premises to him.

(4) This regulation only applies to premises in Great Britain.

Exceptions to regulations 4 and 5

6.—(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.

(2) Regulation 5 does not apply to anything done in relation to the disposal or management of a part of any premises by a person (“the landlord”) if—

(a) the landlord or a near relative of his resides, and intends to continue to reside, in another part of the premises,

(b) the premises include parts (other than storage areas and means of access) shared by residents of the premises, and

(c) the premises are not normally sufficient to accommodate—

(i) in the case of premises to be occupied by households, more than two households in addition to that of the landlord or his near relative, or

(ii) in the case of premises to be occupied by individuals, more than six individuals in addition to the landlord or his near relative.

(3) In paragraph (1) “near relative” means—

(a) spouse or civil partner,

(b) parent or grandparent,

(c) child or grandchild (whether or not legitimate)

(d) spouse or civil partner of a child or grandchild,

(e) brother or sister (whether of full blood or half blood), and

(f) any of the relationships listed in sub-paragraphs (b) to (e) that arises through marriage, civil partnership or adoption.

(4) Regulation 5(1) and (3) shall not apply to the disposal of premises by a person who—

(a) owns an estate or interest in the premises,

(b) occupies the whole of the premises,

(c) does not use the services of an estate agent for the purposes of the disposal, and

(d) does not arrange for the publication of an advertisement for the purposes of the disposal.

Educational establishments, local education authorities, and education authorities

7.—(1) It is unlawful for the responsible body of an educational establishment listed in Schedule 3 to discriminate against a person—

(a) in the terms on which it offers to admit him as a pupil,

(b) by refusing to accept an application to admit him as a pupil, or

(c) where he is a pupil of the establishment—

(i) in the way in which it affords him access to any benefit, facility or service,

(ii) by refusing him access to a benefit, facility or service,

(iii) by excluding him from the establishment, or

(iv) by subjecting him to any other detriment.

(2) In the application of this regulation and Schedule 3 to England and Wales—

(a) an expression also used in any of the Education Acts (within the meaning of section 578 of the Education Act 1996(7)) has the same meaning as in that Act, and

(b) “pupil” in relation to an establishment includes any person who receives education at that establishment.

(3) In the application of this regulation and Schedule 3 to Scotland, an expression also used in the Education (Scotland) Act 1980(8) has the same meaning as in that Act.

(4) It is unlawful for a local education authority (in England and Wales) or an education authority (in Scotland) in the exercise of their functions to discriminate against a person.

Public authorities

8.—(1) It is unlawful for a public authority exercising a function to do any act which constitutes discrimination.

(2) In paragraph (1)—

(a) “public authority” includes any person who has functions of a public nature (subject to paragraph (3)), and

(b) “function” means function of a public nature.

(3) Paragraph (1) does not apply to—

(a) a body listed in Part 1 of Schedule 1, or

(b) the functions or actions listed in Part 2 of that Schedule.

Discriminatory practices

9.—(1) It is unlawful for a person to operate a practice which would be likely to result in unlawful discrimination if applied to persons of any sexual orientation.

(2) It is unlawful for a person to adopt or maintain a practice or arrangement in accordance with which in certain circumstances a practice would be operated in contravention of paragraph (1).

(3) In this regulation “unlawful discrimination” includes discrimination which is unlawful by virtue of any of regulations 4 to 8.

(4) Proceedings in respect of a contravention of this regulation may be brought only—

(a) by the Commission, and

(b) in accordance with sections 20 to 24 of the 2006 Act.

Discriminatory advertisements

10.—(1) It is unlawful to publish, or to cause to be published, an advertisement which indicates (expressly or impliedly) an intention by any person to discriminate unlawfully.

(2) In this regulation the reference to unlawful discrimination is a reference to discrimination which is unlawful by virtue of any of regulations 4 to 8.

(3) Proceedings in respect of a contravention of this regulation may be brought only—

(a) by the Commission, and

(b) in accordance with section 25 of the 2006 Act.

(4) A person who publishes an advertisement shall not be liable in proceedings under that section in respect of the publication of the advertisement if he proves that—

(a) he published in reliance on a statement, made by a person causing the advertisement to be published, that paragraph (1) would not apply, and

(b) it was reasonable to rely on that statement.

(5) A person who knowingly or recklessly makes a false statement of the kind mentioned in paragraph (4)(a) commits an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Instructing or causing discrimination

11.—(1) It is unlawful for a person—

(a) to instruct another to discriminate unlawfully,

(b) to cause or attempt to cause another to discriminate unlawfully, or

(c) to induce or attempt to induce another to discriminate unlawfully.

(2) For the purposes of paragraph (1)(c) inducement may be direct or indirect.

(3) In this regulation a reference to unlawful discrimination is a reference to discrimination which is unlawful by virtue of any of regulations 4 to 8.

(4) Proceedings in respect of a contravention of this regulation may be brought only—

(a) by the Commission, and

(b) in accordance with section 25 of the 2006 Act.

Statutory requirements

12.  Nothing in these Regulations shall make it unlawful to do anything which is necessary, or in so far as it is necessary, for the purpose of complying with—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) legislation made or to be made—

(i) by a Minister of the Crown,

(ii) by Order in Council,

(iii) by the Scottish Ministers or a member of the Scottish Executive,

(iv) by the National Assembly for Wales, or

(v) by or by virtue of a Measure of the General Synod of the Church of England, or

(d) a condition or requirement imposed by a Minister of the Crown by virtue of anything listed in paragraphs (a) to (c).

Education, training and welfare

13.  Nothing in these Regulations shall make it unlawful for any person to do anything by way of—

(a) meeting special needs for education, training or welfare of persons on grounds of their sexual orientation, or

(b) providing ancillary benefits in connection with meeting the needs mentioned in paragraph (a).

Organisations relating to religion or belief

14.—(1) Subject to paragraphs (2) and (8) this regulation applies to an organisation the purpose of which is—

(a) to practise a religion or belief,

(b) to advance a religion or belief,

(c) to teach the practice or principles of a religion or belief,

(d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief.

(2) This regulation does not apply —

(a) to an organisation whose sole or main purpose is commercial,

(b) in relation to regulation 7 (Educational establishments, local educational authorities, and education authorities).

(3) Nothing in these Regulations shall make it unlawful for an organisation to which this regulation applies, or for anyone acting on behalf of or under the auspices of an organisation to which this regulation applies—

(a) to restrict membership of the organisation,

(b) to restrict participation in activities undertaken by the organisation or on its behalf or under its auspices,

(c) to restrict the provision of goods, facilities or services in the course of activities undertaken by the organisation or on its behalf or under its auspices, or

(d) to restrict the use or disposal of premises owned or controlled by the organisation,

in respect of a person on the ground of his sexual orientation.

(4) Nothing in these Regulations shall make it unlawful for a minister—

(a) to restrict participation in activities carried on in the performance of his functions in connection with or in respect of an organisation to which this regulation relates, or

(b) to restrict the provision of goods, facilities or services in the course of activities carried on in the performance of his functions in connection with or in respect of an organisation to which this regulation relates,

in respect of a person on the ground of his sexual orientation.

(5) Paragraphs (3) and (4) permit a restriction only if imposed —

(a) if it is necessary to comply with the doctrine of the organisation; or

(b) so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

(6) In paragraph (4) the reference to a minister is a reference to a minister of religion, or other person, who —

(a) performs functions in connection with a religion or belief to which an organisation, to which this regulation applies, relates; and

(b) holds an office or appointment in, or is accredited, approved or recognised for purposes of, an organisation to which this regulation applies.

(7) For the purposes of paragraph (3)(d), “disposal” shall not include disposal of an interest in premises by way of sale where the interest being disposed of is the entirety of the organisation’s interest in the premises, or the entirety of the interest in respect of which the organisation has power of disposal.

(8) This regulation does not apply where an organisation of the kind referred to in paragraph (1) or any person acting on its behalf or under its auspices—

(a) makes provision of a kind referred to in regulation 4, or

(b) exercises a function of a kind referred to in regulation 8,

on behalf of a public authority under the terms of a contract for provision of that kind between that authority and an organisation referred to in paragraph (1) or, if different, the person making that provision.

Adoption and fostering agencies

15.—(1) Paragraph (2) applies to a voluntary adoption agency or fostering agency that —

(a) is an organisation of the kind referred to in regulation 14(1), or

(b) acts on behalf of or under the auspices of such an organisation.

(2) Subject to paragraph (3), during the period from the commencement of these Regulations until 31^st December 2008, nothing in these Regulations shall make it unlawful for such a voluntary adoption agency or fostering agency to restrict the provision of its services or facilities to a person on the grounds of his sexual orientation.

(3) If such a voluntary adoption agency or fostering agency restricts the provision of those services or facilities as mentioned in paragraph (2), it must at the same time refer the person seeking them to another person who the agency believes provides similar services or facilities to persons of his sexual orientation.

(4) Paragraph (2) permits a restriction only if imposed —

(a) if it is necessary to comply with the doctrine of the organisation, or

(b) so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

Associations

16.—(1) This regulation applies to any association of persons (however described, whether corporate or unincorporated, and whether or not its activities are carried on for profit) if—

(a) it has 25 or more members, and

(b) admission to membership is regulated by its constitution and is so conducted that the members do not constitute a section of the public within the meaning of regulation 4(1); and

(c) it is not a trade organisation.

(2) In this regulation—

“trade organisation” means an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists,

“profession” includes any vocation or occupation, and

“trade” includes any business.

(3) It is unlawful for an association to which this regulation applies, in the case of a person who is not a member of the association, to discriminate against him—

(a) in the terms on which it is prepared to admit him to membership, or

(b) by refusing or deliberately omitting to accept his application for membership.

(4) It is unlawful for an association to which this regulation applies, in the case of a person who is a member or associate of the association, to discriminate against him—

(a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them, or

(b) in the case of a member, by depriving him of membership, or varying the terms on which he is a member, or

(c) in the case of an associate, by depriving him of his rights as an associate, or varying those rights, or

(d) in either case, by subjecting him to any other detriment.

(5) For the purposes of this regulation—

(a) a person is a member of an association if he belongs to it by virtue of his admission to any sort of membership provided for by its constitution (and is not merely a person with certain rights under its constitution by virtue of his membership of some other association), and references to membership of an association shall be construed accordingly,

(b) a person is an associate of an association to which this regulation applies if, not being a member of it, he has under its constitution some or all of the rights enjoyed by members (or would have apart from any provision in its constitution authorising the refusal of those rights in particular cases).

Exceptions from regulation 16 for certain associations

17.—(1) Regulation 16 does not apply to any association if the main object of the association is to enable the benefits of membership (whatever they may be) to be enjoyed by persons of a particular sexual orientation.

(2) In determining whether that is the main object of an association regard shall be had to the essential character of the association and to all relevant circumstances including, in particular, the extent to which the affairs of the association are so conducted that the persons primarily enjoying the benefits of membership are of the sexual orientation in question.

Charities

18.—(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if—

(a) he acts in pursuance of a charitable instrument, and

(b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument.

(2) Nothing in these Regulations shall make it unlawful for the Charity Commission for England and Wales or the holder of the office of the Scottish Charity Regulator to exercise a function in relation to a charity in a manner which appears to the Commission or to the holder to be expedient in the interests of the charity, having regard to the provisions of the charitable instrument.

(3) In this regulation—

“charitable instrument”–

“charity”—

Restriction of proceedings

19.—(1) Except as provided by these Regulations, no proceedings, whether criminal or civil, may be brought against a person on the grounds that an act is unlawful by virtue of these Regulations.

(2) But paragraph (1) does not preclude—

(a) proceedings by the Commission under Part 1 of the 2006 Act,

(b) an application for judicial review,

(c) proceedings under the Immigration Acts(11),

(d) proceedings under the Special Immigration Appeals Commission Act 1997(12), or

(e) in Scotland, the exercise of the jurisdiction of the Court of Session to entertain an application for reduction or suspension of an order or determination or otherwise to consider the validity of an order or determination, or to require reasons for an order or determination to be stated.

Claims of unlawful action

20.—(1) A claim that a person has done anything that is unlawful by virtue of these Regulations may be brought—

(a) in England and Wales, in a county court, by way of proceedings in tort, or

(b) in Scotland, in the sheriff court, by way of proceedings in reparation,

for breach of statutory duty.

(2) Proceedings in England and Wales alleging that a local education authority or the responsible body of an educational establishment listed in Schedule 3 has acted unlawfully by virtue of regulation 7 or 8 may not be brought unless the claimant has given written notice to the Secretary of State.

(3) Proceedings in Scotland alleging that an education authority or the responsible body of an educational establishment listed in Schedule 3 has acted unlawfully by virtue of regulation 7 or 8 may not be brought unless the pursuer has given written notice to the Scottish Ministers.

(4) In paragraph (1) the reference to a claim that a person has done an unlawful act includes a reference to a claim that a person is to be treated by virtue of these Regulations as having done an unlawful act.

(5) In proceedings under this regulation, if the claimant (or pursuer) proves facts from which the court could conclude, in the absence of a reasonable alternative explanation, that an act which is unlawful by virtue of these Regulations has been committed, the court shall assume that the act was unlawful unless the respondent (or defender) proves that it was not.