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Equality Act guidance 'not comprehensive enough', say lawyers

Governance | Vibeka Mair | 28 Sep 2010

Lawyers have welcomed the Charity Commission’s initial guidance on the Equality Act which is coming into force next week, but said more detailed guidance would be needed.

The publication comes after the Charity Law Association condemned the lack of guidance available on the incoming Act, saying it left charities in limbo.

Jonathan Burchfield, head of charities at Stone King Sewell, said it was likely the Charity Commision had been prompted to produce some initial guidance by pressure from groups like the CLA.

“The guidance is a helpful prompt to charities that restrict who they benefit,” Burchfield said, “but more detailed guidance is going to be needed.”

The Charity Commission plans to publish full guidance before the end of the year.

Ewa Holender, a solicitor with Farrer & Co, said the full guidance will need to address restrictions on donations, which are currently under the radar:

“A lot of charities will face uncertainty. The new guidance makes clear that certain charities with restriction will need to review their objects. For some it will come as a big surprise as some have had these objects for hundreds of years.

“But more importantly, some restrictions also don’t relate to objects but are restricted to things like donations. The Commission’s guidance doesn’t tackle this question yet.”

Leona Roche, a solicitor with Bates Well and Braithwaite, added it was good that the Commission outlined charities' exemption under the Act but said the full guidance would benefit from further detail on the practical application of the two tests that can be used to show that a charity falls within the exemption.

Hugh Moore, a solicitor with Withers, agreed saying though the guidance was helpful, it left some unanswered questions:

"In particular, test B on proportionate means of achieving a legitimate aim gives examples, but does not apply the test. There is scope for more detail to come through." 

Roche added: “The guidance should also expand on the exemption for religious or belief organisations, as many religious charities are likely to look to this exemption if they are unsure that they fall within charities exemption.”

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