The Equality Act 2010 ('the Act') consolidates anti-discrimination legislation into one document. Its purpose is to 'rationalise' and 'strengthen' existing equality legislation which it aims to do by creating 9 "protected characteristics":
- Gender - reassignment
- Religion or Belief
- Sexual Orientation
- Marriage & Civil Partnership
- Pregnancy and Maternity
The Act makes discrimination unlawful and applies to all organisations that provide a service to any part of the public. It also applies to anyone who sells goods or provides facilities. The Government Equalities Office guidance confirms that this will include "community centres, information and advice agencies, charity shops, sports clubs, internet based services, residential care homes, day care centres and private clubs and other associations with 25 or more members."
The Act makes some changes to the public service provisions which will substantially affect charities.
Under previous legislation, if a charitable instrument (the document that established or set up the charity) provided that it would only benefit specified groups of people, there were a number of exemptions which meant that such activity would not amount to unlawful discrimination.
Under the Act however, charities require to satisfy a two stage test. Restricting the provision of benefits to persons who share a protected characteristic will be allowed if it is:
- A proportionate means of achieving a legitimate aim, or
- For the purpose of preventing or compensating for a disadvantage linked to the protected characteristic and the charity acts on the basis of its charitable instrument.
The Act does allow charities to provide arrangements for supported employment only for people with the same disability, or disabilities of a description that will be set out in regulations. It also allows certain charities to have the acceptance of a religion or belief as one of the requirements to be fulfilled before membership is allowed or before members are allowed access to benefits. This will only be allowed where the charity has been imposing this requirement since before 18 May 2005. Finally, the Act permits single-sex activities which are used to support a charity.
When the Act comes into force in October 2010, charities will need to comply with the non- discrimination provisions; or they will either need to be able to show that one of the exceptions above applies to their charitable instrument; or meet the two stage test. This could pose some problems for charities as they may not be clear what will constitute a legitimate aim. This means that charities may be breaching the terms of the Equality Act without knowing.
The Charity Commission is being urged to produce guidance on the issue before the Act comes into force, although it is not clear whether such guidance will be available. Without this guidance it is difficult for Charities to understand how they will be affected by the Act. The Government Equalities Office have recommended that prior to implementation charities should inform staff of the new provisions, review Equality policies and consider providing further training for staff.