Some concerns have been raised, in the media at least, about the impact of the Equality Act 2010 on the ability of charities to restrict benefits to specific groups within the community to the exclusion of others. The Act makes it illegal to discriminate against anyone with a “protected characteristic” in many areas, such as employment or the provision of services. As the definition of “protected characteristics” includes amongst others age, disability, race, sex, sexual orientation and religion where does that leave the charities that are set up to assist these groups?
Before too many nights sleep are lost over this, it is important to remember that the Equality Act 2010 is largely a harmonising piece of legislation bringing together existing laws – it is not creating significant new hurdles for charities to get over. Previous legislation such as the Sex Discrimination Act and the Race Relations Act contained very similar provisions to those now set out in the Equality Act. They also contained a similar charities exemption. The key difference under the Equality Act is that any restriction must be allowed by the charity’s governing document, and the restriction must be justifiable on the basis that either:-
(i) it helps to tackle disadvantages that particularly affect someone with a protected characteristic; or (ii) it is, for some other reason a fair, balanced and reasonable (proportionate) way of achieving a legitimate aim.
So if your organisation does restrict benefits then step one is to look at the charity'sgoverning document where the restriction is specified and check that it fits with the organisation’s charitable purposes. If it does, and it relates to people with a shared protected characteristic then it is necessary to consider if the restriction can be justified by either (i) or (ii) above. In broad terms heading (i) covers situations where the particular group that is being assisted are in some way at a disadvantage when compared to the general population. For example, if a charity wishes to provide help tackling unemployment among people of a particular ethnic origin because unemployment is particularly high for that group in comparison to the general population, that is likely to be lawful.
Heading (ii) tackles a situation where the group the charity wants to help is not at a disadvantage in the first place. In this scenario the charity is causing a disadvantage to anyone excluded from their assistance. Not surprisingly the more serious the disadvantage caused to the groups that are excluded the more convincing and weighty reasons will be required for justification.
It is likely that over time more clarity will be given to what is meant by “a proportionate means of achieving a legitimate aim” under heading (ii). However while this terminology may be new to the charitable exemption, it is far from new to discrimination legislation so some guidance is already available. General law says that a “legitimate aim” is one that has a reasonable social policy objective such as protection of vulnerable groups or promotion of health. The particular aim will also need to be consistent with the charity’s stated public benefit purpose.
Once the legitimate aim has been established it will then be necessary to look at whether the way in which it is being achieved is proportionate. If a charity is not sure about this, then it is at this stage that specific advice should probably be sought. It is likely that most charities will be able to justify any potential inequality of treatment. However, should there be any difficulty then it is better to deal with it now than to continue, albeit unintentionally, with potentially discriminatory practices.