All Things Are Equal: Implications of the Equality Act 2006

On 30th April 2007 Part 2 of the Equality Act 2006 came into force. In brief, this means it is now unlawful to discriminate on the grounds of religion or belief (or lack of them) in providing goods, facilities or services, in education, in the use and disposal of premises, and in the exercise of public functions.

On the same date, Regulations made under Part 3 of the Equality Act came into force outlawing discrimination on grounds of sexual orientation in similar situations. Neither set of provisions deal with discrimination in an employment context, which is dealt with under separate legislation.

These provisions apply to charities (although some exemptions do exist) and apply whether or not the goods, services and facilities which are being provided are charged for. They add to the comparable protection which already exists preventing discrimination in similar circumstances on the grounds of race, disability or sex.

It is important to realise that the Act does not make it unlawful to provide goods, services or facilities which may be of more interest to a particular group of society. It does, however, make it unlawful (as a general rule) to act in a way which implies that a particular group of society is not welcome to take advantage of those goods, facilities or services.

There are a number of noteworthy points that arise from the new provisions.

Advertising
Advertising goods, services, facilities and premises in such a way that the advertisement could reasonably be understood to have a discriminatory intention is prohibited. For example, it would be unlawful for an organisation to advertise to the effect that persons of a certain religion would not be able to access its services.

Employers’ Liability
Charities which are employers need to be aware that they will be liable under the Act for any offending actions of their employees. This is the case whether or not they know about the offending action or, indeed, whether or not they approve of the action. However, it is a defence for an employer to show that all reasonable steps were taken to prevent the breach, for example, by the provision of training and clear policy guidance for employees to adhere to.

Public Authorities and Public Functions
Public authorities must ensure that all their services are provided in such a way that no-one entitled to use any service is disadvantaged in receiving it by reason of religion or belief or because of sexual orientation. This includes services which are provided by public authorities via a contract with a third party such as a charity.

Exemptions
Some organisations, including charities, may in certain circumstances be exempt from these provisions. These exceptions include the following:

• a charity can provide goods, services, facilities and dispose of property in a way which could be considered discriminatory either on the grounds of sexual orientation or religious disposition if it can show that it is required to so act because of a restriction imposed by the charity’s constitutional document, perhaps within its objects. For example, a charity whose objects involve the provision of funding for education in accordance with a particular religion will not have to start funding education of other kinds. However, this exemption is likely to be interpreted quite narrowly; and

• an organisation (including a charity) established to practice or further a particular religion can, for example, lawfully restrict its membership, participation in its activities, the provision of goods, facilities or services in the course of its activities or the use or disposal of its premises provided that it meets certain requirements. Key conditions of this exemption are that the purposes of the organisation are not commercial and, in some cases, that the organisation has not contracted with a public authority to provide goods, facilities or services on its behalf.

The possible implications of these new provisions are far reaching for some charities. If you would like advice on how they might affect your particular organisation then please contact either Anna Roderick (01392 685367) or James Evans (01392 685243).

Published 28/08/2007.