The implications of the Equality Act 2010 for charities
On 1 October 2010, many of the provisions of the Equality Act 2010 came into force. This is quite significant for charities and it is important to take note of its enforcement as well as take the necessary steps to ensure you are compliant with its provisions.
The Act makes it illegal to discriminate against individuals with regard to provision of services, access to premises and indeed access to membership organisations and associations.
The Act updates discrimination law and as such it is no longer possible to discriminate on the grounds of a number of specific categories, known in the Act, as "Protected Characteristics". These include, amongst others, age, disability, race, religion and sexual orientation.
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The importance of the Ad for charities lies in the area of public benefit in that, as already established in the Charities Act 2006, all charities must have an "aim" for public benefit.
Therefore, on the face of it, the aims of all charities must be either for the public benefit generally, or a specific group of people, which is a significant section of the public.
However, the Act intends to ensure that the public is treated fairly. This is in part achieved by ensuring that when sections of the public are restricted from receiving benefit provided by a charity, the restriction does not create an unlawful discrimination.
There is therefore a "charities exemption". The Act specifically allows a charity to restrict its benefits to people with a shared Protected Characteristic.
In order for this to work, the governing document of the charity must allow for restriction (usually the trust deed or Articles of Memorandum and Association).
The restrictions must be justified by either of the following reasons:
- It helps to tackle disadvantages that particularly affect someone with a Protected Characteristic. (Test A).
- It is for some other reason a fair, balanced and reasonable way of achieving a legitimate aim. (Test B).
The Charity Commission has confirmed that the charities exemption affects not only existing charities but also those wishing to apply for registration as a charity.
However, only charities which have a restriction on who may benefit, or those with a restriction that does not relate to a Protected Characteristic, will need to use the charities exemption provided in the Act.
The Charities Commission has published guidance on the requirements of the Equality Act. In the guidance examples are provided for both areas of "tackling disadvantage" and for "achievement of a legitimate aim".
All registered charities have a legal duty to comply with the Act. It is likely that many charities will be able to rely on the charities exemption. The Charity Commission recommends, however, that charities ensure compliance, perhaps as part of their routine review of their operations.
The Act contains some other exemptions for charities from the requirement not to discriminate against people with a Protected Characteristic. This includes fundraising (which can be restricted to a single sex only) or membership (which includes being member of a particular religion). Further details are also provided on exemptions which apply to particular types of organisation. These include associations and schools.
For further guidance and to ensure you are fully compliant, please consult the Equality and Human Rights Commission and the Charity Commission or go onto their websites.