26
(1)
A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—
(a)
a joint service for persons of both sexes would be less effective, and
(b)
the limited provision is a proportionate means of achieving a legitimate aim.
(2)
A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services differently for persons of each sex if—
(a)
a joint service for persons of both sexes would be less effective,
(b)
the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and
(c)
the limited provision is a proportionate means of achieving a legitimate aim.
(3)
This paragraph applies to a person exercising a public function in relation to the provision of a service as it applies to the person providing the service.
Cases considering Schedule 3, paragraph 26 6
[2025] UKSC 16 · 16 April 2025Interprets
The exception for separate services for each sex refers to biological sex. A certificate-based grouping would prevent coherent assessment of whether joint services are less effective. (see paras [212]-[214])
[2017] UKSC 40 · 24 May 2017Limits
The paragraph permits otherwise discriminatory separate-sex services when its effectiveness, practicability and proportionality requirements are met. The provision of approved premises fell within the exception's scope, but proportionality had not been established (see paras [34]-[42]).
This subparagraph addresses separate services that are materially equal. It was not the most appropriate provision because the geographical availability of approved premises differed between the sexes, although the decisive proportionality issue would have been the same (see paras [35]-[38]).
A joint service would have been less effective because vulnerable female offenders would otherwise share premises with male offenders presenting high or very high risks of harm (see para [38]).
The limited-by-sex provision had to be proportionate. The Secretary of State could not establish that requirement without assessing the disadvantage and possible mitigation (see paras [39]-[42]).
The subparagraph governed because the separate services differed materially in geographical availability. A joint service would be less effective and equivalent provision impracticable, but the existing distribution had not been shown to be proportionate (see paras [37]-[42]).
A joint service would have been less effective given the vulnerability of female residents and the risks presented by male residents (see para [38]).
The substantially lower demand from women made it impracticable to provide them with the same number of premises as men. Minimum staffing costs applied regardless of the number of residents (see paras [9]; [38]).
The Secretary of State had not shown that the limited-by-sex provision was proportionate because the Ministry had not assessed the disadvantage, its significance, mitigation or alternative arrangements (see paras [39]-[42]).
The words concerning a public function in relation to service provision were broad enough to cover the commissioning and regulation of approved premises (see para [36]).
[2017] EWCA Civ 1426 · 13 October 2017Limits
Paragraph 26 proceeds on the basis that separate services for men and women may otherwise be unlawful discrimination. Its exceptions require a less effective joint service and a proportionate means of achieving a legitimate aim. (see paras [62]-[67])
The separate-services exception applies where a joint service would be less effective and the limited provision is proportionate to a legitimate aim. (see paras [62]-[67])
The separate-and-different services exception requires a less effective joint service, practical necessity for separate provision, and proportionality to a legitimate aim. (see paras [62]-[67])
What each judgment says about Schedule 3, paragraph 26 is in the case-law panel in the full Act.