Legal

Falling foul of the new Equality Act?

Governance | 28 Feb 2011

New anti-descrimination legislation has a chair concerned that the charity does not conform. Hugh More responds.

Dear editor,

I am extremely worried that my charity might be in breach of the new Equality Act. I am told charities may no longer rely upon the same exemptions charities used to use under previous anti-discrimination legislation, to provide benefits to specific groups of people.

My charity provides education and recreational activities for women from Bangladesh. Could we find ourselves falling foul of the law? I have checked the Charity Commission and Equality and Human Rights Commission websites but there doesn’t appear to be any guidance on the issue on either website.

Can you help?

Yours sincerely

A chair of trustees who cannot sleep

Dear sleepless chair,

Many charities like yours will have been relying on one of the various charitable exemptions in the previous anti-discrimination regime in order to justify limiting their support to people sharing particular ‘characteristics’. The law has changed, so you are right to consider the impact of the change on your organisation.

The Equality Act 2010, which came into force on 1 October, covers nine “protected characteristics”: age, disability, gender reassignment, marital and civil partnership status, pregnancy and maternity, race (including nationality and ethnic or national origin), religion or belief, sex, and sexual orientation.

This new regime includes several area-specific exemptions and, depending on your circumstances, it may be possible for your organisation to fit within one of them, for example, single-sex education or service provision.

There is also a new general charity exemption which may be of use. In order to be able to rely on it, your organisation will have to be acting in accordance with an “instrument” such as your charity’s trust deed or articles of association. It will also need to show that the restriction on benefit is compensating for (or preventing) a real disadvantage experienced by Bangladeshi women or, alternatively, that it is a “proportionate means” of achieving a “legitimate aim”.

The Charity Commission has now issued guidance on its website. Unfortunately, this guidance does little to explain the practical impact of these statutory tests (although more detailed advice is awaited). At this stage, unless a specific exemption applies, it seems likely that the Commission will require charities to have a strong case for limiting their activities in a way that could be said to discriminate against certain protected groups.

You and your co-trustees are right to engage early with this new law. The board should carefully consider if the charity can take advantage of any of the specific or general exemptions.

In particular, review the charity’s governing document, and the restriction to Bangladeshi women in light of their needs and the services provided. For example, could you show that this group is particularly likely to have educational gaps (and so find it harder to find employment)?

The charity will also need to analyse the restriction of services to women only: do the training needs particularly or only affect women? Would the training be less effective if it was co-educational?

The board may wish to seek specific advice and if the tests prove difficult to meet, it may be necessary to work with the Charity Commission to update the charity’s objects or practices to achieve compliance.

Yours sincerely,

Hugh More, solicitor, Withers LLP