Charities, like any other service provider, are now subject to restrictions of unlawful discrimination under the Equality Act 2010.
Trustees will be anxious to understand whether the specific charities exception contained in the Act (section 193), or any of the other exceptions in the Act, can be applied to them, to ensure that when granting benefit they do not breach the provisions.
There is a lack of detailed guidance for charities on the applicable exceptions in the Equality Act. The Charities Commission guidance of September 2011 has gone some way to fill that gap, however, due to the potential impact of the Act, Trustees could still be left double checking every decision.
To summarise the anti-discrimination provisions, it is unlawful to discriminate against someone because of a protected characteristic.
Protected characteristics are; gender, race, religion or belief, age, sexual orientation, disability, pregnancy, maternity or gender reassignment. There are broadly four different types of discrimination; direct, indirect, harassment and victimisation.
Discrimination need not be intentional to be unlawful. A policy, criterion or practice, operated by a charity generally, may unwittingly give rise to indirect discrimination if it disproportionately affects one or a group of persons sharing a particular protected characteristic. For example, a policy that precludes granting benefit to people shorter than six feet tall. While not, on the face of it, discriminatory, the provision would unduly prejudice individuals of Asian origin who are typically less able to meet this height requirement. Indirect discrimination claims can be made even if there is no formal policy in place, but may in some cases be capable of objective justification, enabling a charity to avoid financial liability.
The charities exception
If a charity has a specific principal purpose expressed in its governing document, it will need to ensure that where the purpose favours or excludes one or more protected characteristic, the charity can rely on the specific charities exception in the Act. In practice this would mean that charities which set up for the promotion of a particular religion within the community, will need to rely on the exception to avoid unlawfully discriminating against other religions which may be excluded from benefit.
The exception applies provided that two conditions are met. First, the charity’s governing document must detail the principal purpose of allowing only persons sharing a particular protected characteristic to benefit. Second, the charity’s restriction must be justifiable or for the purpose of preventing or compensating for a disadvantage, linked with the protected characteristic.
Other exceptions in the Act
There are other exceptions available to charities if they do not meet the specific requirements of the charities exception. These exceptions include restricting membership of associations, for example, men only or women only fundraising, membership based on religious belief and positive action in service provision. As is the case with Cancer Research UK, which is permitted to promote single sex only fundraising to support or promote charities. Charitable associations can restrict membership and benefits to people who share a particular characteristic, apart from a person’s colour.
Certain charities can restrict membership requirements which are based on religious belief even if the charity is not set up for religious purposes, provided the requirement was in place prior to 18 May 2005. The positive action provision would allow a grant making charity which has no restriction on who or what it can help, to make a grant to an organisation which supports, for example, homeless women with complex needs.
It is reasonable for trustees to want legal certainty when granting benefit to avoid discrimination claims. The specific charity and other exceptions are not straightforward and detailed advice is required.
Only trustees of disabled charities will have restful nights, as they will not have to struggle with the intricacies of the relevant exceptions, given that it is not unlawful discrimination to treat disabled people more favourably.
Emma Bartlett is a partner in the employment team at Speechly Bircham LLP.