Part VII Supplemental
53AF33 Codes of practice.
F341
The Disability Rights Commission may prepare and issue codes of practice giving practical guidance on how to avoid F37acts which are unlawful under Part 2, 3 or 4, or on any other matter relating to the operation of any provision of F38those Parts, to—
a
employers;
b
service providers;
F41ba
public authorities within the meaning given by section 21B;
bb
associations to which section 21F applies;
c
bodies which are responsible bodies for the purposes of Chapter 1 or 2 of Part 4; or
d
other persons to whom the provisions of Parts 2 or 3 or Chapter 2 F42or 2A of Part 4 apply.
1A
The Commission may also prepare and issue codes of practice giving practical guidance to any persons on any other matter with a view to—
a
promoting the equalisation of opportunities for disabled persons and persons who have had a disability; or
b
encouraging good practice in the way such persons are treated,
in any field of activity regulated by any provision of Part 2, 3 or 4.
1B
Neither subsection (1) nor (1A) applies in relation to any duty imposed by or under sections 28D or 28E.
F431C
The Commission may prepare and issue codes of practice giving practical guidance to persons subject to duties under section 49A or 49D on how to perform those duties.
F391D
The Commission may prepare and issue codes of practice giving practical guidance to landlords and tenants as to—
a
circumstances in which a tenant requires the consent of his landlord for making a relevant improvement to a dwelling house;
b
circumstances in which it is unreasonable to withhold such consent;
c
the application of the improvement provisions in relation to relevant improvements to dwelling houses.
1E
In subsection (1D) the improvement provisions are—
a
section 19(2) of the Landlord and Tenant Act 1927;
b
sections 81 to 85 of the Housing Act 1980;
c
sections 97 to 99 of the Housing Act 1985;
d
section 49G above.
2
The Commission shall, when requested to do so by the Secretary of State, prepare a code of practice dealing with the matters specified in the request.
C133
In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).
4
The Commission may not issue a code of practice unless—
a
a draft of it has been submitted to and approved by the Secretary of State and laid by him before both Houses of Parliament; and
b
the 40 day period has elapsed without either House resolving not to approve the draft.
F444A
Where a draft of a code of practice that deals with performance of duties under section 49A or 49D is submitted to the Secretary of State for approval, he shall consult the Scottish Ministers and the National Assembly for Wales before deciding whether to approve it.
5
If the Secretary of State does not approve a draft code of practice submitted to him he shall give the Commission a written statement of his reasons.
6
A code of practice issued by the Commission—
a
shall come into effect on such day as the Secretary of State may by order appoint;
b
may be revised in whole or part, and re-issued, by the Commission; and
c
may be revoked by an order made by the Secretary of State at the request of the Commission.
F456A
Before appointing a day under subsection (6)(a) for the coming into effect of a code of practice that deals with performance of duties under section 49A or 49D, the Secretary of State shall consult the Scottish Ministers and the National Assembly for Wales.
7
Where the Commission proposes to revise a code of practice—
a
it shall comply with subsection (3) in relation to the revisions; and
b
the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.
8
Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings F35. . ..
F368A
But if a provision of a code of practice appears to a court, tribunal or other body hearing any proceedings under Part 2, 3 or 4 to be relevant, it must take that provision into account.
9
In this section—
“code of practice” means a code of practice under this section;
F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“40 day period” has the same meaning in relation to a draft code of practice as it has in section 3 in relation to draft guidance.
F46“relevant improvement” means an improvement (within the meaning of section 49G(9)) to premises which, having regard to the disability which a disabled person who lawfully occupies or is intended lawfully to occupy the premises has, is likely to facilitate his enjoyment of the premises.
C154AF1 Codes of practice.
F21
The Commission may prepare and issue codes of practice giving practical guidance on how to avoid acts which are unlawful under Part II or III of this Act or Part III of the 2005 Order, or on any other matter relating to the operation of any provision of Part II or III of this Act or Part III of the 2005 Order, to—
a
employers;
b
service providers;
c
bodies which are responsible bodies for the purposes of Chapter I or II of Part III of the 2005 Order; or
d
other persons to whom the provisions of Part II or III of this Act or Part III of the 2005 Order apply.
1A
The Commission may also prepare and issue codes of practice giving practical guidance to any persons on any other matter with a view to—
a
promoting the equalisation of opportunities for disabled persons and persons who have had a disability; or
b
encouraging good practice in the way such persons are treated,
in any field of activity regulated by any provision of Part II or III of this Act or Part III of the 2005 Order.
1B
Neither subsection (1) nor (1A) applies in relation to any duty imposed by or under Article 17 or 18 of the 2005 Order.
2
The Commission shall, when requested to do so by the Office, prepare a code of practice dealing with the matters specified in the request.
3
In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).
4
The Commission may not issue a code of practice unless—
a
a draft of it has been submitted to and approved by the Office and laid by the Office before the Assembly; and
b
the statutory period has elapsed without the Assembly resolving not to approve the draft.
5
If the Office does not approve a draft code of practice submitted to it the Office shall give the Commission a written statement of its reasons.
6
A code of practice issued by the Commission—
P1a
shall come into effect on such day as the Office may by order appoint;
b
may be revised in whole or part, and re-issued, by the Commission; and
c
may be revoked by an order made by the Office at the request of the Commission.
7
Where the Commission proposes to revise a code of practice—
a
it shall comply with subsection (3) in relation to the revisions; and
b
the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.
8
Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under Part II or Part III F3or Part III of the 2005 Order shall be taken into account in determining that question.
9
In this section—
“code of practice” means a code of practice under this section;
“the Commission” means the Equality Commission for Northern Ireland;
F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“the Office” means the Office of the First Minister and deputy First Minister; and
“statutory period” has the meaning assigned to it by section 41(2) of the Interpretation Act (Northern Ireland) 1954.
F510
Subject to subsection (12), in relation to a code of practice giving practical guidance wholly or mainly as to—
a
any matter relating to the operation of any provision of Chapter I or III of Part III of the 2005 Order; or
b
any field of activity regulated by any such provision,
any reference in this section to the Office shall be read as a reference to the Department of Education.
11
Subject to subsection (12), in relation to a code of practice giving practical guidance wholly or mainly as to—
a
any matter relating to the operation of any provision of Chapter II of Part III of the 2005 Order; or
b
any field of activity regulated by any such provision,
any reference in this section to the Office shall be read as a reference to the Department for Employment and Learning.
12
Practical guidance which but for this subsection would fall to be contained in separate codes of practice by virtue of subsections (10) and (11) may be contained in a single code of practice; and in relation to any such code of practice any reference in this section to the Office shall be read as a reference to the Department of Education and the Department for Employment and Learning, acting jointly.
F19E4I553 Codes of practice prepared by the Secretary of State.
F191
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F192
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F193
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4
A failure on the part of any person to observe any provision of a code does not of itself make that person liable to any proceedings.
5
A code is admissible in evidence in any proceedings under this Act before an F20employment tribunal, a county court or a sheriff court.
6
If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question.
7
In this section and section 54 “code” means a code issued by the Secretary of State under this section and includes a code which has been revised and re-issued.
F198
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F199
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E3I1F653 Codes of practice prepared by the Secretary of State.
F61
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F62
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F63
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4
A failure on the part of any person to observe any provision of a code does not of itself make that person liable to any proceedings.
5
A code is admissible in evidence in any proceedings under this Act before an industrial tribunal, F7or a county court.
6
If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question.
7
In this section and section 54 “code” means a code issued by the Secretary of State under this section and includes a code which has been revised and re-issued.
F68
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F69
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F21I2E154F8F21 Further provision about codes issued under section 53.
F81
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F82
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F83
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F84
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F85
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F86
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F87
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8
The Secretary of State may by order revoke a code.
F89
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E7C4C5C655 Victimisation.
1
For the purposes of Part II F26, Part 3 or Part 4, a person (“A”) discriminates against another person (“B”) if—
a
he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and
b
he does so for a reason mentioned in subsection (2).
2
The reasons are that—
a
B has—
i
brought proceedings against A or any other person under this Act; or
ii
given evidence or information in connection with such proceedings brought by any person; or
iii
otherwise done anything under F29, or by reference to, this Act in relation to A or any other person; or
iv
alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or
b
A believes or suspects that B has done or intends to do any of those things.
3
Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a).
F273A
For the purposes of Chapter 1 of Part 4—
a
references in subsection (2) to B include references to—
i
a person who is, for the purposes of that Chapter, B’s parent; and
ii
a sibling of B; and
b
references in that subsection to this Act are, as respects a person mentioned in sub-paragraph (i) or (ii) of paragraph (a), restricted to that Chapter.
4
Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith.
F285
6
F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E8C355 Victimisation.
1
or the purposes of Part II or Part III, a person (“A”) discriminates against another person (“B”) if—
a
he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and
b
he does so for a reason mentioned in subsection (2).
2
The reasons are that—
a
B has—
i
brought proceedings against A or any other person under this Act F9or Part III of the 2005 Order ; or
ii
given evidence or information in connection with such proceedings brought by any person; or
iii
otherwise done anything under this Act F9or Part III of the 2005 Order in relation to A or any other person; or
iv
alleged that A or any other person has (whether or not the allegation so states) contravened this Act F9or Part III of the 2005 Order ; or
b
A believes or suspects that B has done or intends to do any of those things.
3
Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a).
F103A
For the purposes of Chapter I of Part III of the 2005 Order—
a
references in subsection (2) to B include references to—
i
a person who is, for the purposes of that Chapter, B's parent; and
ii
a sibling of B; and
b
references in that subsection to this Act or Part III of the 2005 Order are, as respects a person mentioned in sub-paragraph (i) or (ii) of paragraph (a), to be read as references to that Chapter.
4
Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith.
F115
In the case of an act which constitutes discrimination by virtue of this section, sections 4, 4B, 4D, 4G, 6A, 7A, 13, 14A, 14C and 16A also apply to discrimination against a person who is not disabled.
6
For the purposes of Part II and, to the extent that it relates to the provision of employment services, Part III, subsection (2)(a)(iii) has effect as if there were inserted after “under” or by reference to.
E5I656F25 Help for aggrieved persons in obtaining information etc.
1
For the purposes of this section—
a
a person who considers that he may have been—
i
discriminated against in contravention of Part 2 or 3, or
ii
subjected to harassment in contravention of Part 2 or section 21A(2),
is referred to as “the person aggrieved”; and
b
a person against whom the person aggrieved may decide to institute, or has instituted, proceedings in respect of such discrimination or harassment is referred to as “the respondent”.
2
With a view to helping the person aggrieved decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Secretary of State shall by order prescribe—
a
forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and
b
forms by which the respondent may if he so wishes reply to any questions.
3
Where the person aggrieved questions the respondent in accordance with forms prescribed by an order under subsection (2)—
a
the question, and any reply by the respondent (whether in accordance with such an order or not), shall be admissible as evidence in any proceedings under Part 2 or 3;
b
if it appears to the court or tribunal in any such proceedings—
i
that the respondent deliberately, and without reasonable excuse, omitted to reply within the period of eight weeks beginning with the day on which the question was served on him, or
ii
that the respondent’s reply is evasive or equivocal,
it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent committed an unlawful act.
4
The Secretary of State may by order—
a
prescribe the period within which questions must be duly served in order to be admissible under subsection (3)(a); and
b
prescribe the manner in which a question, and any reply by the respondent, may be duly served.
5
Rules of court may enable a court entertaining a claim under section 25 to determine, before the date fixed for the hearing of the claim, whether a question or reply is admissible under this section or not.
6
In proceedings in respect of a section 21B claim, subsection (3)(b) does not apply in relation to a failure to reply, or a particular reply, if the following conditions are met—
a
that, at the time of doing any relevant act, the respondent was carrying out public investigator functions or was a public prosecutor; and
b
that the respondent reasonably believes that a reply or (as the case may be) a different reply would be likely to prejudice any criminal investigation, any decision to institute criminal proceedings or any criminal proceedings or would reveal the reasons behind a decision not to institute, or a decision not to continue, criminal proceedings.
7
Regulations may provide for this section not to have effect, or to have effect with prescribed modifications, in relation to section 21B claims of a prescribed description.
8
This section is without prejudice to any other enactment or rule of law regulating interlocutory and preliminary matters in proceedings before a county court, the sheriff or an employment tribunal, and has effect subject to any enactment or rule of law regulating the admissibility of evidence in such proceedings.
9
In this section “section 21B claim” means a claim under section 25 by virtue of section 21B.
E6I356 Help for persons suffering discrimination.
1
For the purposes of this section—
a
b
a person against whom the complainant may decide to make, or has made, a complaint under Part II F23or, to the extent that it relates to the provision of employment services, Part III is referred to as “the respondent”.
2
The Secretary of State shall, with a view to helping the complainant to decide whether to make a complaint against the respondent and, if he does so, to formulate and present his case in the most effective manner, by order prescribe—
a
forms by which the complainant may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and
b
forms by which the respondent may if he so wishes reply to any questions.
3
Where the complainant questions the respondent in accordance with forms prescribed by an order under subsection (2)—
a
the question, and any reply by the respondent (whether in accordance with such an order or not), shall be admissible as evidence in any proceedings under Part II F23or, to the extent that it relates to the provision of employment services, Part III;
b
if it appears to the tribunal in any such proceedings—
i
that the respondent deliberately, and without reasonable excuse, omitted to reply within F24the period of eight weeks beginning with the day on which the question was served on him, or
ii
that the respondent’s reply is evasive or equivocal,
it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a provision of Part II F23or, to the extent that it relates to the provision of employment services, Part III.
4
The Secretary of State may by order prescribe—
a
the period within which questions must be duly served in order to be admissible under subsection (3)(a); and
b
the manner in which a question, and any reply by the respondent, may be duly served.
5
This section is without prejudice to any other enactment or rule of law regulating interlocutory and preliminary matters in proceedings before an industrial tribunal, and has effect subject to any enactment or rule of law regulating the admissibility of evidence in such proceedings.
C7C8C957 Aiding unlawful acts.
1
A person who knowingly aids another person to do an F12unlawful act is to be treated for the purposes of this Act as himself doing the same kind of unlawful act.
2
For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 58 (or would be so liable but for section 58(5)) shall be taken to have aided the employer or principal to do the act.
3
For the purposes of this section, a person does not knowingly aid another to do an unlawful act if—
a
he acts in reliance on a statement made to him by that other person that, because of any provision of this Act, the act would not be unlawful; and
b
it is reasonable for him to rely on the statement.
4
A person who knowingly or recklessly makes such a statement which is false or misleading in a material respect is guilty of an offence.
5
Any person guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
F136
“Unlawful act” means an act made unlawful by any provision of this Act other than a provision contained in Chapter 1 of Part 4.
C10C11C12C258 Liability of employers and principals.
1
Anything done by a person in the course of his employment shall be treated for the purposes of this Act as also done by his employer, whether or not it was done with the employer’s knowledge or approval.
2
Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Act as also done by that other person.
3
Subsection (2) applies whether the authority was—
a
express or implied; or
b
given before or after the act in question was done.
4
Subsections (1) and (2) do not apply in relation to an offence under section 57(4).
5
In proceedings under this Act against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from—
a
doing that act; or
b
doing, in the course of his employment, acts of that description.
I4E259 Statutory authority and national security etc.
1
Nothing in this Act makes unlawful any act done—
a
in pursuance of any enactment; or
F14b
in pursuance of any instrument made under any enactment by—
i
a Minister of the Crown,
ii
a member of the Scottish Executive, or
iii
the National Assembly for Wales; or
c
to comply with any condition or requirement—
i
imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment,
ii
imposed by a member of the Scottish Executive (whether before or after the coming into force of this sub-paragraph) by virtue of any enactment, or
iii
imposed by the National Assembly for Wales (whether before or after the coming into force of this sub-paragraph) by virtue of any enactment.
2
In subsection (1) “enactment” includes one passed or made after the date on which this Act is passed and “instrument” includes one made after that date.
F152A
Nothing in –
a
Part II, or
b
Part III to the extent that it relates to the provision of employment services,
makes unlawful any act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose.
F162A
Nothing in—
a
Part 2 of this Act, or
b
Part 3 of this Act to the extent that it relates to the provision of employment services,
makes unlawful any act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose.
3
Nothing in F17any other provision of this Act makes unlawful any act done for the purpose of safeguarding national security.
F1859ANational security
1
Rules of court may make provision for enabling a county court or sheriff court in which a claim is brought in respect of alleged discrimination contrary to this Act (including anything treated by virtue of this Act as amounting to discrimination contrary to this Act), where the court considers it expedient in the interests of national security—
a
to exclude from all or part of the proceedings—
i
the claimant;
ii
the claimant's representatives;
iii
any assessors;
b
to permit a claimant or representative who has been excluded to make a statement to the court before the commencement of the proceedings, or the part of the proceedings, from which he is excluded;
c
to take steps to keep secret all or part of the reasons for the court's decision in the proceedings.
2
The Attorney General or, in Scotland, the Advocate General for Scotland, may appoint a person to represent the interests of a claimant in, or in any part of, proceedings from which the claimant or his representatives are excluded by virtue of subsection (1).
3
A person may be appointed under subsection (2) only—
a
in relation to proceedings in England and Wales, if he has a general qualification (within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41)), or
b
in relation to proceedings in Scotland, if he is—
i
an advocate, or
ii
qualified to practice as a solicitor in Scotland.
4
A person appointed under subsection (2) shall not be responsible to the person whose interests he is appointed to represent.