Governance and the Equality Act 2010 - what trustees need to know!
The Charity Commission has recently published new guidance on the Equality Act 2010 for charities and it occurred to me that equality and diversity is an essential issue for trustees to be aware of and often they are not. Trustees need to make sure that as employers they are aware of the regulations in this area, that their governing document is compliant with the Equality Act and that their staff know what they must do under equality law and what they are prohibited from doing.
Below, I have had a look at the Commission's view on how charities can ensure that they do not breach equality law when providing targeted services to particular groups. I have also looked at some other issues that trustees and charities might want to consider.
What is the Equality Act?
The Equality Act 2010 was an attempt to harmonise a raft of equality legislation which has been passed over the years. The first piece of legislation was the Equal Pay Act in 1970 and this was followed by a myriad of legislation (9 Acts in total) as well as masses of case law which sets out how the legislation was to be applied.
What does the Act mean for Charities?
The people protected by the Act are often the most vulnerable and marginalised in society, in other words, they are the people who make up the bulk of our sector’s beneficiaries. Many charities provide targeted services to groups of people that share particular characteristics, disabilities, ethnicities, ages, etc. It is important that these charities make sure that they are working within equality law and not discriminating unlawfully.
As well as providing a source of protection to our beneficiaries, the Act also places obligations on charities as employers, service providers and in some instances, as the deliverer of public functions on behalf of a public authority.
What do trustees need to know?
The question is do the trustees of your charity know the obligations placed upon them by the Act? Many of these obligations are new and there are some which are yet to come into force. For example, in 2012 we will hopefully see the prohibition of age discrimination in the provision of goods, facilities and services for the first time. This means that as a charity or voluntary organisation you need to ensure that you are not discriminating against different age groups when you are providing services. This does not mean that you cannot provide services targeted at particular age groups.
The Charity Commission have made clear that you can restrict your benefits to certain groups who share ‘protected characteristics’, such as people in certain age groups, of certain races, genders, etc as long as:
a) your governing document allows it
b) you can show that the group faces a particular disadvantage
c) the restriction is a fair, balanced and reasonably necessary way of carrying out a legitimate aim (to reduce the disadvantage suffered by this group)
This is called the charity exemption. If you cannot satisfy the charity exemption but still provide services to a particular protected group, you could fall foul of equality law and charity law as it might result in you being unable to satisfy the public benefit test required as a charity.
Now what do I do?
The guidance recommends that charities:
- review their governing document and identify whether it restricts the people who can benefit from its work to a group of people with a particular protected characteristic, such as women, people with learning difficulties, people from a particular ethnic background etc
- If there is such a restriction the charity should then look at whether the restriction can be justified using the charities exemption
- If the restriction on who can be a beneficiary cannot be justified the charity may not be complying with the Equality Act. This means that its charitable purposes may not be capable of passing the public benefit test.
Do your trustees know this? If not then perhaps you need to read the Charity Commission guidance….
Some other things to think about:
- The Act has introduced new provisions around third party harassment of employees, do you know what this means?
- The Act has introduced a ban on pre-employment health questionnaires which means, for example, that taking into account people’s sick leave during shortlisting for a post may be unlawful – do you still consider sick leave during shortlisting?
- Who are your service users? Do they fall under any of the protected characteristics? The 9 protected characteristics under the Act are age, disability, gender, gender reassignment, marital or civil partnership, pregnancy or maternity, race, religious or other belief, sexual orientation. You need to ensure that you are not discriminating against these groups.
- Does your charity know what reasonable adjustments it has to make for disabled people?
- Do you know the different types of discrimination and how to recognise them - for example can you recognise indirect discrimination?
There is a lot of guidance on the Government Equality Office Website on the issue – enjoy!
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Oonagh Smyth, Senior advisor, shares her advice on governance. Note: Oonagh no longer works for NCVO.