(Margaret Craton, Partner, Commercial)

The Equality Act 2010 received Royal Assent in April and its provisions are due to come into effect from October this year onwards. Charities will need to consider the impact of the Act both as employers and in connection with the services they provide and the beneficiaries that they assist.

The Act protects against discrimination in respect of age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation. These are referred to as “protected characteristics” under the Act.

A number of charities do restrict their beneficiaries and under the existing equality legislation (which will mainly be replaced by the new Act) they have been able to rely on the right to be able to restrict, provided it is set out in a “charitable instrument” which is interpreted as the governing document of the charity or as stipulated in a restricted donation.

Under the new Act the exemption available for charities is set out in section 193 of the Act which permits that the group of persons to whom benefits are provided can be restricted to people who share a particular characteristic, but the charity must ensure that the provision of benefits 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”. There are concerns about how this part of the legislation will be applied to charities where they have not expressed the “legitimate aim” of restrictions defining their group of beneficiaries.

The Charity Commission has been urged and has now agreed to publish guidance for charities on how the Act will impact on their objects to prevent unnecessary amendments.

Details of the impact of this legislation on charities as employers will be issued by the team shortly.

For more information or any questions please contact Margaret Craton