Regolamento 20 giugno 2003

The Race Relations Act 1976 (Amendment) Regulations 2003

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Citation, commencement, extent and interpretation

Section 1.

(1) These Regulations may be cited as the Race Relations Act 1976 (Amendment) Regulations 2003 and shall come into force on 19th July 2003.
(2) These Regulations do not extend to Northern Ireland.
(3) In these Regulations “the 1976 Act” means the Race Relations Act 1976[3].

(omissis)

Racial discrimination

Section 3.

In section 1 of the 1976 Act (racial discrimination), after subsection (1), insert –

” (1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.

(1B) The provisions mentioned in subsection (1A) are –
(a) Part II;
(b) sections 17 to 18D;
(c) section 19B, so far as relating to –
(i) any form of social security;
(ii) health care;
(iii) any other form of social protection; and
(iv) any form of social advantage;

[…]

Section 4.

In section 3 of the 1976 Act (meaning of “racial grounds”, “racial group” etc), in subsection (4), after the words “section 1(1)”, insert “or (1A)”.

Harassment

Section 5.

After section 3 of the 1976 Act insert –
” Harassment
3A. – (1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –
(a) violating that other person’s dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”.

Harassment by employers

Section 6.

(1) In the heading to section 4 of the 1976 Act (discrimination against applicants and employees) omit the words “Discrimination against”.

(2) That section is amended as follows –
(a) after subsection (2) insert –
” (2A) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to subject to harassment a person whom he employs or who has applied to him for employment.”;
(b) in subsection (3) (exception for employment for purposes of private household), after the words “section 2”, insert “or discrimination on grounds of race or ethnic or national origins”; and
(c) after subsection (4) insert –
” (4A) In subsection (2)(c) reference to the dismissal of a person from employment includes, where the discrimination is on grounds of race or ethnic or national origins, reference –
(a) to the termination of that person’s employment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment is renewed on the same terms; and
(b) to the termination of that person’s employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.”.

Exception for genuine occupational requirement

Section 7.

After section 4 of the 1976 Act insert –
” Exception for genuine occupational requirement
4A. – (1) In relation to discrimination on grounds of race or ethnic or national origins –
(a) section 4(1)(a) or (c) does not apply to any employment; and
(b) section 4(2)(b) does not apply to promotion or transfer to, or training for, any employment; and
(c) section 4(2)(c) does not apply to dismissal from any employment;
where subsection (2) applies.

(2) This subsection applies where, having regard to the nature of the employment or the context in which it is carried out –
(a) being of a particular race or of particular ethnic or national origins is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either –
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.”.

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Other harassment in employment etc.

Section 10.

(1) In the heading to section 7 of the 1976 Act (discrimination against contract workers) omit the words “Discrimination against”.

(2) That section is amended as follows –

(a) in subsection (3) –
(i) after the words “racial group”, in the first place where they occur, insert “, or not of a particular race or particular ethnic or national origins,”;
(ii) after the words “racial group”, in the second place where they occur, insert “or of that race or those origins”; and
(iii) after the word “qualification” insert “or, as the case may be, that act would be lawful by virtue of section 4A”; and

(b) after subsection (3), insert –
” (3A) It is unlawful for the principal, in relation to work to which this section applies, to subject a contract worker to harassment.”; and

(c) in subsection (4), after the word “principal”, in the first place where it occurs,[b] insert “on grounds other than those of race or ethnic or national origins,”.

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Partnerships

Section 12.

In section 10 of the 1976 Act (partnerships) –

(a) after subsection (1), insert –
” (1A) The limitation of subsection (1) to six or more partners does not apply in relation to discrimination on grounds of race or ethnic or national origins.
(1B) It is unlawful for a firm, in relation to a position as a partner in the firm, to subject to harassment a person who holds or has applied for that position.”;

(b) in subsection (2), for the words “Subsection (1)” substitute “Subsections (1), (1A) and (1B)”;

(c) in subsection (3), for the words “being of a particular racial group” to the end substitute “section 4A or 5 would apply to such employment”; and

(d) at the end insert –
“(6) In subsection (1)(d)(ii) reference to the expulsion of a person from a position as partner includes, where the discrimination is on grounds of race or ethnic or national origins, reference –
(a) to the termination of that person’s partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the partnership is renewed on the same terms; and
(b) to the termination of that person’s partnership by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the other partners.”.

Other bodies

Section 13.

In section 11 of the 1976 Act (trade unions etc), at the end insert –
” (4) It is unlawful for an organisation to which this section applies, in relation to a person’s membership or application for membership of that organisation, to subject him to harassment.”.

Section 14.

In section 12 of the 1976 Act (qualifying bodies) –

(a) after subsection (1), insert –
” (1A) It is unlawful for an authority or body to which subsection (1) applies, in relation to an authorisation or qualification conferred by it, to subject to harassment a person who holds or applies for such an authorisation or qualification.”; and

(b) for subsection (3), substitute –
” (3) Subsections (1) and (1A) do not apply to discrimination or harassment which is rendered unlawful by section 17 or 18.”.

Section 15.

In section 13 of the 1976 Act (persons concerned with provision of vocational training), after subsection (2), insert
” (3) It is unlawful for any person who provides, or makes arrangements for the provision of, facilities for training to which subsection (1) applies, in relation to such facilities or training, to subject to harassment a person to whom he provides such training or who is seeking to undergo such training.
(4) Subsection (3) does not apply to harassment which is rendered unlawful by section 4(2A) or by section 17 or 18.”.

Section 16.

In section 14 of the 1976 Act (employment agencies) –

(a) after subsection (1) insert –
” (1A) It is unlawful for an employment agency, in relation to the provision of its services, to subject to harassment a person to whom it provides such services or who requests the provision of such services.”;

(b) at the end of subsection (2) insert “or harassment”; and

(c) in subsection (3), for the words “subsection (1)”, substitute “subsections (1) and (1A)”.

Section 17.

In section 15 of the 1976 Act (Training Commission etc), in subsections (1) and (1A), after the word “discriminate”, insert “or to subject a person to harassment”.

Harassment in other fields

Section 18.

(1) In the heading to section 17 of the 1976 Act (discrimination by bodies in charge of educational establishments) omit the words “Discrimination by”.

(2) At the beginning of that section insert “(1)”, and at the end insert –
” (2) It is unlawful for a responsible body, in relation to an establishment falling within column 1 of the table in subsection (1), to subject to harassment –
(a) a person who applies for admission to the establishment as a pupil; or
(b) a pupil at the establishment.”.

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Public authorities

Section 20.

(1) In the heading to section 19B of the 1976 Act (discrimination by public authorities) omit the words “Discrimination by”.

(2) That section is amended as follows –
(a) after subsection (1) insert –
” (1A) It is unlawful for a public authority to subject a person to harassment in the course of carrying out any functions of the authority which consist of the provision of –
(a) any form of social security;
(b) healthcare;
(c) any other form of social protection; or
(d) any form of social advantage,
which does not fall within section 20.”; and
(b) in subsection (6), after the word “discrimination”, insert “or harassment”.

(omissis)

Harassment in provision of goods, facilities or services etc.

Section 22.

(1) In the heading to section 20 of the 1976 Act (discrimination in provision of goods, facilities or services) omit the words “Discrimination in”.

(2) After subsection (2) of that section insert –
” (3) It is unlawful for any person concerned with the provision of goods, facilities or services as mentioned in subsection (1), in relation to such provision, to subject to harassment –
(a) a person who seeks to obtain or use those goods, facilities or services, or
(b) a person to whom he provides those goods, facilities or services.”.

Section 23.

(1) In the heading to section 21 of the 1976 Act (discrimination in disposal or management of premises) omit the words “Discrimination in”.

(2) That section is amended as follows –
(a) after subsection (2), insert –
” (2A) It is unlawful for a person, in relation to such premises as are referred to in subsection (1) or (2), to subject to harassment a person who applies for or, as the case may be, occupies such premises.”; and
(b) in subsection (3), after the words “does not apply to”, insert “discrimination, on grounds other than those of race or ethnic or national origins, by”.

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Harassment by, or in relation to, barristers and advocates

Section 27.

(1) In the heading to section 26A of the 1976 Act (discrimination by, or against, barristers) omit the words “Discrimination by, or in relation to,”.

(2) That section is amended as follows –
(a) in subsection (3), after the words “discriminate against any person”, insert “or to subject any person to harassment”; and
(b) after subsection (3) insert –
” (3A) It is unlawful for a barrister or barrister’s clerk, in relation to a pupillage or tenancy in the set of chambers in question, to subject to harassment a person who is, or has applied to be, a pupil or tenant.”.

Section 28.

(1) In the heading to section 26B of the 1976 Act (discrimination by, or in relation to, advocates) omit the words “Discrimination by, or in relation to,”.

(2) That section is amended as follows –
(a) in subsection (3), after the words “discriminate against any person”, insert “or to subject any person to harassment”; and
(b) after subsection (3) insert –
” (3A) It is unlawful for an advocate, in relation to taking any person as his pupil, to subject to harassment a person who has applied to be, or is, a pupil.”.

Relationships which have come to an end

Section 29.

In Part IV of the 1976 Act, before section 28, insert –
” Relationships which have come to an end
27A. – (1) In this section a “relevant relationship” is a relationship during the course of which, by virtue of any provision referred to in section 1(1B), taken with section 1(1) or (1A), or (as the case may be) by virtue of section 3A –
(a) an act of discrimination by one party to the relationship (“the relevant party”) against another party to the relationship, on grounds of race or ethnic or national origins, or
(b) harassment of another party to the relationship by the relevant party,
is unlawful.
(2) Where a relevant relationship has come to an end it is unlawful for the relevant party –
(a) to discriminate against another party, on grounds of race or ethnic or national origins, by subjecting him to a detriment, or
(b) to subject another party to harassment,
where the discrimination or harassment arises out of and is closely connected to that relationship.
(3) In subsection (1) reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before 19th July 2003, reference to such an act which would, after that date, be unlawful.
(4) For the purposes of any proceedings in respect of an unlawful act under subsection (2), that act shall be treated as falling within circumstances relevant for the purposes of such of the provisions, or Parts, referred to in subsection (1) as determine most closely the nature of the relevant relationship.”.

(omissis)

Section 31. –

(1) In the heading to section 30 of the 1976 Act (instructions to discriminate) for the word “discriminate” substitute “commit unlawful acts”.

(2) After the words “Part II or III” in that section insert “section 76ZA or, where it renders an act unlawful on grounds of race or ethnic or national origins, section 76,”.

Section 32.

(1) In the heading to section 31 of the 1976 Act (pressure to discriminate) for the word “discriminate” substitute “commit unlawful acts”.

(2) After the words “Part II or III” in that section insert “section 76ZA or, where it renders an act unlawful on grounds of race or ethnic or national origins, section 76,”.

(omissis)

Section 35.

In section 41 of the 1976 Act (acts done under statutory authority) –

(a) in subsection (1) for the word “subsection” substitute “section”;

(b) after subsection (1), insert –
” (1A) Subsection (1) does not apply to an act which is unlawful, on grounds of race or ethnic or national origins, by virtue of a provision referred to in section 1(1B)[c].”; and

(c) in subsection (2), for paragraphs (a) and (b), substitute –
” (a) in pursuance of any enactment or Order in Council; or
(b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or
(c) in order to comply with any requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment; or
(d) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown; or
(e) in order to comply with any condition imposed (whether before or after the passing of this Act) by a Minister of the Crown”.

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Burden of proof

Section 41.

After section 54 of the 1976 Act insert –
” Burden of proof: employment tribunals
54A. – (1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent –
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part IV in its application to those provisions, or
(b) has committed an act of harassment.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –
(a) has committed such an act of discrimination or harassment against the complainant, or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”.

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Validity and revision of contracts

Section 48.

In section 72 of the 1976 Act (validity and revision of contracts), in subsection (2), after the words “unlawful discrimination against”, insert “or harassment of,”.

Collective agreements and rules of undertakings

Section 49.

After section 72 of the 1976 Act insert –
” Collective agreements and rules of undertakings
72A. – (1) This section applies to –
(a) any term of a collective agreement, including an agreement which was not intended, or is presumed not to have been intended, to be a legally enforceable contract;
(b) any rule made by an employer for application to all or any of the persons who are employed by him or who apply to be, or are, considered by him for employment;
(c) any rule made by an organisation to which section 11 (trade organisations) applies, or by a body to which section 12 (qualifying bodies) applies, for application to –
(i) all or any of its members or prospective members; or
(ii) all or any of the persons on whom it has conferred authorisations or qualifications or who are seeking the authorisations or qualifications which it has power to confer.

(2) Any term or rule to which this section applies is void where –
(a) the making of the collective agreement is, by reason of the inclusion of the term, unlawful on grounds of race or ethnic or national origins, by virtue of a provision referred to in section 1(1B);
(b) the term or rule is included or made in furtherance of an act which is unlawful on such grounds by virtue of such a provision; or
(c) the term or rule provides for the doing of such an act.

(3) Subsection (2) applies whether the agreement was entered into, or the rule made, before, on or after 19th July 2003; but in the case of an agreement entered into, or a rule made, before that date, that subsection does not apply in relation to any period before that date.

(4) In this section, and in section 72B, “collective agreement” means any agreement relating to one or more of the matters mentioned in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992[4] (meaning of trade dispute), being an agreement made by or on behalf of one or more employers or one or more organisations of employers or associations of such organisations with one or more organisations of workers or associations of such organisations.

72B. – (1) A person to whom this subsection applies may present a complaint to an employment tribunal that a term or rule is void by virtue of section 72A if he has reason to believe –
(a) that the term or rule may at some future time have effect in relation to him; and
(b) where he alleges that it is void by virtue of section 72A(2)(c), that –
(i) an act for the doing of which it provides may at some such time be done in relation to him, and
(ii) the act would be rendered unlawful on grounds of race or ethnic or national origins by a provision referred to in section 1(1B) if done in relation to him in present circumstances.

(2) In the case of a complaint about –
(a) a term of a collective agreement made by or on behalf of –
(i) an employer;
(ii) an organisation of employers of which an employer is a member; or
(iii) an association of such organisations of one of which an employer is a member; or
(b) a rule made by an employer, within the meaning of section 72A(1)(b);
subsection (1) applies to any person who is, or is genuinely and actively seeking to become, one of his employees.

(3) In the case of a complaint about a rule made by an organisation or body to which section 72A(1)(c) applies, subsection (1) applies to any person –
(a) who is, or is genuinely and actively seeking to become, a member of the organisation or body;
(b) on whom the organisation or body has conferred an authorisation or qualification; or
(c) who is genuinely and actively seeking an authorisation or qualification which the organisation or body has power to confer.

(4) When an employment tribunal finds that a complaint presented to it under subsection (1) is well-founded the tribunal shall make an order declaring that the term or rule is void.

(5) An order under subsection (4) may include provision as respects any period before the making of the order (but after 19th July 2003).

(6) The avoidance by virtue of section 72 A(2) of any term or rule which provides for any person to be discriminated against shall be without prejudice to the following rights (except in so far as they enable any person to require another person to be treated less favourably than himself) namely –
(a) such of the rights of the person to be discriminated against, and
(b) such of the rights of any person who will be treated more favourably in direct or indirect consequence of the discrimination,
as are conferred by or in respect of a contract made or modified wholly or partly in pursuance of, or by reference to, that term or rule.”.

(omissis)

Other office holders

Section 51.

After section 76 of the 1976 Act insert –
” Other office holders
76ZA. – (1) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this section applies, to discriminate against a person on the grounds of race or ethnic or national origins –
(a) in the arrangements which he makes for the purpose of determining to whom the appointment should be offered;
(b) in the terms on which he offers him the appointment; or
(c) by refusing or deliberately omitting to offer him the appointment.

(2) It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this section applies, to discriminate against him on grounds of race or ethnic or national origins –
(a) in the terms of the appointment;
(b) in the way he affords him access to opportunities for promotion, transfer, training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;
(c) by terminating the appointment; or
(d) by subjecting him to any other detriment in relation to the appointment.

(3) It is unlawful for a relevant person, in relation to an office or post to which this section applies, to subject to harassment a person who has been appointed to, or is seeking or being considered for appointment to, such an office or post.

(4) Subsections (1) and (2) do not apply to any act in relation to an office or post where, if the office or post constituted employment, the act would be lawful by virtue of section 4A (exception for genuine occupational requirement).

(5) Subsection (2) does not apply to benefits, facilities or services of any description if the relevant person is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or a section of the public to which the person belongs, unless –
(a) that provision differs in a material respect from the provision of the benefits, facilities or services to persons appointed to offices or posts which are the same as, or not materially different from, that to which the person has been appointed;
(b) the provision of the benefits, facilities or services to the person appointed is regulated by the terms and conditions of his appointment; or
(c) the benefits, facilities or services relate to training.

(6) In subsection (2)(c) reference to the termination of the appointment includes reference –
(a) to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and
(b) to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment by reason of the conduct of the relevant person.

(7) This section applies to any office or post, other than a political office or post, where –
(a) sections 4, 7, 10, 26A, 26B and 76 do not apply in relation to appointment to that office or post;
(b) it is an office or post to which persons are appointed to discharge functions personally under the direction of another person; and
(c) it is an office or post in respect of which they are entitled to remuneration.

(8) For the purposes of subsection (7) the holder of an office or post –
(a) is to be regarded as discharging his functions under the direction of another person if that other person is entitled to direct him as to when and where he discharges those functions; and
(b) is not to be regarded as entitled to remuneration merely because he is entitled to payments –
(i) in respect of expenses incurred by him in carrying out the functions of the office or post, or
(ii) by way of compensation for the loss of income or benefits he would or might have received from any person had he not been carrying out the functions of the office or post.

(9) In this section –
(a) appointment to an office or post does not include election to an office or post;
(b) “political office or post” means –
(i) any office of the House of Commons held by a member of it;
(ii) a life peerage within the meaning of the Life Peerages Act 1958 [5], or any office held in the House of Lords by a member of it;
(iii) any office mentioned in Schedule 2 (Ministerial offices) to the House of Commons Disqualification Act 1975[6];
(iv) the offices of Leader of the Opposition, Chief Opposition Whip or Assistant Opposition Whip within the meaning of the Ministerial and other Salaries Act 1975[7];
(v) any office of the Scottish Parliament held by a member of it;
(vi) a member of the Scottish Executive within the meaning of section 44 of the Scotland Act 1998[8], or a junior Scottish Minister within the meaning of section 49 of that Act;
(vii) any office of the National Assembly for Wales held by a member of it;
(viii) in England, any office of a county council, a London borough council, a district council or a parish council held by a member of it;
(ix) in Wales, any office of a county council, a county borough council or a community council held by a member of it;
(x) in relation to a council constituted under section 2 of the Local Government etc (Scotland) Act 1994[9] or a community council established under section 51 of the Local Government (Scotland) Act 1973[10], which is held by a member of it;

[…]

(c) “relevant person”, in relation to an office or post, means –
(i) any person with power to make or terminate appointments to the office or post, or to determine the terms of appointment; and
(ii) any person with power to determine the working conditions of a person appointed to the office or post in relation to opportunities for promotion, a transfer, training or for receiving any other benefit.”.

Definitions

Section 52.

In section 78 of the 1976 Act (general interpretation provisions) insert in the appropriate alphabetical order –

” “detriment” does not include conduct of a nature such as to constitute harassment under section 3A;”;
“social protection” and “social advantage” have the same meaning as in Article 3 of Council Directive 2000/43/EC;”.

Fiona Mactaggart
Parliamentary Under-Secretary of State