The principles of the Act (which is regulated by the Equality and Human Rights Commission “EHRC”) are that discrimination on grounds of age, disability, gender reassignment, marriage and civil partnership, race (including nationality or ethnic origin) religion or belief, sex and sexual orientation (the “protected grounds”) is not permitted in the course of certain defined activities, subject to some limited exceptions.

 

Charities have benefited from exceptions under previous legislation, on the basis that they legitimately provided services to persons in need in the public interest. With exception of distinctions based on colour, charities were able to provide services to e.g. the elderly, to women or men only or girls or boys only, or to gay or lesbian persons provided that the restriction was contained in their charitable governing document.

 

Since the implementation of the Human Rights Act 1998 in the year 2000 and the EC Directive on Equal Treatment 2004/113 the position has been changed for some cases, in particular sex discrimination. The exemption is now much narrower.

 

The published timeline from EHRC shows much of the Equality Act 2010 is due to come into force on 1st October 2010. Section 193 of the Act now adopts the more restrictive approach across the board in relation to all the protected grounds. This requires a charity not only to show that it is acting in pursuance of its governing instrument but to show that:

 

(1)    The restriction is a proportionate means of achieving a legitimate aim; or

(2)    It is for the purpose of preventing or compensating for a disadvantage linked to a protected characteristic.

 

If charities are to avoid breaking the law they must be in a position to know how the system will be applied in practice. As long ago as the 2nd of April 2010 the Charity Law Association in its response to a consultation by the 'EHRC' pointed out the inadequacy of the draft code of practice and guidance. Some guidance has now appeared on the EHRC website, but no draft code of practice for service providers yet. There is some general guidance issued by the Government Equalities Office. None of this provides the practical detail necessary to navigate through the legislation. The Charity Commission was alerted to the problem in April but the latest position is that their guidance on the Equality Act will not appear until the autumn maybe September. A charity that wants a simple answer to the question 'can I still educate girls only?' will look in vain for an answer.

 

In answer to the question 'How do I know if I can restrict my benefits…' EHRC states without a hint of irony 'This is a difficult legal question which is beyond the scope of this guide to provide a definitive answer to'.

 

The present advice from EHRC then follows:

 

(1)    You should read the code of practice –this is not yet available;

 

(2)    The trustees need to decide if the restriction meets either of the two tests and if it does not, to stop applying the restriction;

 

(3)    You can get advice from the Charity Commission –this is not yet available;

 

(4)    If necessary get independent legal advice;

 

(5)    If anyone challenges your decision to restrict the benefits then the courts will decide whether the tests are met.

 

If a charity believes it cannot meet the tests it is in limbo. If it carries out its charitable purposes it breaks equality law. If it applies its funds generally it is in breach of trust and breaks charity law. The Charity Law Association warned that if this situation was not handled properly there would be large numbers of applications to the Charity Commission by charities seeking to change their objects, many perhaps not needed, had guidance been available. 

 

 

IAN DAVIES

SENIOR LEGAL ASSOCIATE

WILSONS LLP SOLICITORS

25TH AUGUST 2010