When the new equality law lets charities discriminate

Our columnist Nicola Evans, a senior associate at law firm Bircham Dyson Bell, explains the new legislation

Nicola Evans, senior associate, Bircham Dyson Bell
Nicola Evans, senior associate, Bircham Dyson Bell

The Equality Act 2010 was passed in haste in the 'wash-up' period at the end of the last Parliament, and came into force on 1 October.

The act consolidates 40 years worth of discrimination legislation while also extending protection in some areas, mostly for greater uniformity. Its purpose is to harmonise discrimination law, but there are a number of implications for charities that trustees should be aware of.

The act establishes nine "protected characteristics" and sets out the conduct that is prohibited in respect of these. The characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

It applies to three main areas: provision of services or exercise of a public function, disposing of or managing premises, and employment.

Charities will be looking at how the legislation affects discrimination in providing services to a selected beneficiary group: does refusing services on the grounds of the nine protected characteristics break the law? Can the Women's Institute, for example, continue to provide educational opportunities for women only, and therefore discriminate against men on the grounds of gender?

In the Women's Institute case, the answer is yes, it can. An exception in the legislation means charities can restrict the provision of benefits to people of a protected characteristic if the charity is acting in pursuance of a charitable instrument and if the provision of benefits is a "proportionate means of achieving a legitimate aim".

Charities can also discriminate in this way for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic. For example, it is legitimate to restrict services to elderly people if those services aim to address disadvantages linked to age. Another example would be a charity for the visually impaired, which does not discriminate against someone who is not visually impaired even though it provides special facilities for visually impaired people and thereby treats them more favourably.

The exception in general is not new, but it is being extended to harmonise it across all the protected characteristics.

There are other exceptions. These include allowing acceptance of a religion or belief to be a condition of membership for certain charities, and allowing charities to restrict participation in activities to men or women. Under this exception, for instance, women-only fundraising runs, such as the Cancer Research UK Race for Life, are permitted.

As before, specific exceptions apply to charities in certain circumstances in which there would otherwise be unlawful discrimination.

There are other provisions dealing with particular situations, allowing educational bodies, for example, to discriminate against certain students or applicants, or associations to discriminate in relation to their members, associates or guests.

Although most of the act is not new, the interaction of equality law and charity law is still a developing area, with some fundamental questions remaining to be answered.

For example, is it possible to have a charitable object that is not a "legitimate aim"? And under what circumstances would a purpose that is discriminatory be a charitable purpose for the public benefit?

Fortunately, such questions should not need in practice to affect most charities' day-to-day activities. But charities should be aware of the act: it should serve as a useful prompt for them to review their purposes and how these are pursued, and to review their employment policies and procedures.

In general, the sector should not fear the act. Rather, charities may be seen as standard-bearers for the principles of equality that underlie it.

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