Charities may be in breach of the new Equality Act 2010 (the “Act”). The Act, the majority of which came into force on 1 October 2010, consolidates existing anti-discrimination legislation including the Race Relations Act, the Disability Discrimination Act and the Sex Discrimination Act all of which cover certain ‘protected characteristics’ (which include, among others, age, disability, race, religion and sex).
Previously, charities were able to claim certain exemptions if their charitable objects confined them to helping people with certain protected characteristics. Under the new Act, there are exemptions available to charities, but they do not appear to be as far ranging as those they replace.
The story so far…
Previous legislation such as the Race Relations Act 1976 and the Equality Act 2006 contains an exemption for acts carried out “in pursuance of a charitable instrument”. This is a fairly wide exemption and means that where a charity’s governing document confers a benefit to groups defined by reference to one or more “protected characteristics” the charity is not in breach of the relevant piece of equality legislation.
However, the exemption contained in the Sex Discrimination Act 1975 is somewhat more restrictive and requires the provisions contained in the governing document to be:
- a proportionate means of achieving a legitimate aim; or
- for the purpose of preventing or compensating for a disadvantage linked to sex.
The new rules
It is this test from the Sex Discrimination Act 1975, applied to all “protected characteristics”, that is contained in Section 193 of the Act.
If you are a charity set up for the benefit of a particular group (defined by reference to one or more “protected characteristics”), those provisions must be contained in your governing document and they must be either: “for the purpose of preventing or compensating for a disadvantage linked to [a] protected characteristic”; or shown to be a “proportionate means of achieving a legitimate aim”.
However, certain religious or faith based charities are exempt under Section 193. A charity, which prior to 18 May 2005, made acceptance of a particular religion or belief a condition of membership and thereby entitlement to the benefit, service or facility provided by that charity, and has continued to impose that condition since that date, is not in contravention of the Act. Certain schools and associations also benefit from exemptions.
Other provisions not in force
The new public sector equalities duty will come into force in April 2011. The implementation of other provisions are still being considered including: tackling social and economic inequalities; enabling employers to discriminate in favour of people from under-represented groups when candidates were equally well qualified; and a requirement for all companies to publish gender pay gap information.
What happens next?
The Act could have a serious impact on the operations of those charities which restrict the provision of benefits to persons who share a “protected characteristic”. Charities should also be aware that as employers they may also be affected by other employment specific sections of the Act.
The Charity Commission has produced some summary guidance on compliance with the Act and on their interpretation of a “proportionate means of achieving a legitimate aim”, which can be found on their website.
All charities would be wise to review their governing documents, and possibly their procedures, to ensure that they comply with the Act, in particular that any provisions that relate to benefits restricted to a defined group of persons who share a “protected characteristic” satisfy one of the two tests referred to above.
For more information or advice, or if you would like your charity’s governing document to be reviewed, please contact
Mark Lewis.
November 2010
