The Equality Act 2010 and its implications for charities
The Equality Act 2010 prevents discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation (known as 'protected characteristics'). The new Act will not only affect new charities but will also apply to existing charities who may have to amend their current governing documents in order to comply.
The charity in question is compliant with the new Act if:
1. The charity does not restrict who may benefit.
2. If there is a restriction but it does not relate to people with one of the `protected characteristics` (listed above).
3. If the restriction does relate to somebody with a `protected characteristic`, it complies with one of the exemptions set out below.
The relevant section of the Equality Act that allows for possible exemptions is s193 (There are no exemptions open to discriminate against groups by colour). The section states that the restriction of benefits is allowed if the restriction is authorised by the document that sets out the charity`s purpose (known as the charity`s governing document). The restriction must also comply with one of two requirements. The first is if the restriction helps to tackle disadvantages that particularly affect someone with one of the `protected characteristics`. The second is if the restriction is a proportionate means of achieving a legitimate aim. In order to be proportionate the restriction must be fair, balanced and reasonable.
The first requirement is met if the group that the charity is aimed at helping are more likely to face a disadvantage than the general population. An example of this would be if a charity who aimed to reduce unemployment, limited their help to a particular ethnic origin, if unemployment was particularly high in that group.
The latter requirement has recently been examined by the Charity Tribunal in the case of the charity Catholic Care. The charity was endeavouring to use the exemption to justify not allowing same sex couples to adopt children through their service. The Charity Tribunal rejected the charity`s argument that the restriction was proportionate because same sex couples could seek adoption services from other bodies such as local authorities and other adoption agencies. This leaves an authority for the fact that simply because there are other providers of the same service, discrimination against a `protected characteristic` group will not be warranted.
The tribunal went on to say that the argument that the charity put forward, that the funding would be withdrawn if the service became an "open adoption service" was not evidenced and therefore was not a valid reason for the restriction being proportionate. The test applied to decide whether the discrimination was proportionate was whether the risk of closure of the Charity`s adoption service (which is by no means certain) was worse than the detriment to same sex couples and the detriment to society generally of permitting the discrimination proposed. The tribunal decided that the discrimination was not proportionate and the detriment to the society and same sex couples outweighed the risk of closure and the effect of such a closure.
The case also acts as an illustration of the possible crucial repercussions the new Act could have upon the services that charity`s can provide.
Guidance given by the Charity Commission as to the second requirement is that a restriction will only be justified if there is a strong justification that shows the restriction is appropriate and necessary. There is a sliding scale in that the more serious the disadvantage caused to the group excluded by the restriction, the more convincing the case must be to justify the restriction.
If the charity does discriminate against one of the `protected characteristic` groups and the charity is unsure whether the restriction complies with one of the possible exemptions they should seek legal advice for further guidance.
Posted on: 20/07/2011
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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