All things being equal, is your club breaking the law?

Under the Act, there are nine protected characteristics:  It is against the law to discriminate against someone because of:

1. age
2. disability
3. gender reassignment
4. marriage and civil partnership
5. pregnancy and maternity
6. race
7. religion or belief
8. sex
9. sexual orientation

The Act says a person must not be discriminated against as it is unlawful, and the person affected can take legal action in the civil courts.  But sometimes people are allowed to discriminate against someone, for example a person applying to become a member of a club, if the committee or officers of the club have a good enough reason for doing so – but they would need to be able to prove this in court, if necessary. This is known in legal terms as objective justification. If discrimination is justified, it doesn’t count as unlawful discrimination under the Act.

What is an Association?
The Act defines an association as an organisation that:

• has 25 or more members; and
• has rules (not necessarily formal or written) regulating who can be a member and there is a genuine selection process for members.

It does not matter whether a club or association is incorporated (for example as a company limited by guarantee) or whether it is an unincorporated body, or whether its activities are carried on for profit or not.

Examples of associations include private clubs such as Probus clubs, Rotary clubs, golf and other sports clubs, ex-forces clubs, alumni clubs, social clubs, working men’s clubs, gaming clubs and drinking clubs. Some charities also meet the definition of an association, for example, the Scout Association and Girlguiding UK.  Such charities are also subject to additional provisions relating to the provision of charitable benefits. Political parties are also covered and are subject to additional provisions dealing with the selection of election candidates.

What is not an Association?
An association is not:

• a club which is open to members of the public simply on payment of an entry fee, such as a night club or a gym – these are covered by different provisions which apply to service providers.
• a trade organisation.

When can discrimination be justified?
The Act says discrimination can be justified if the person who has taken discriminating action, for example the committee or officers of a club, can show that their action is a proportionate means of achieving a legitimate aim. If necessary, it’s the courts which will decide if discrimination can be justified.

Who is protected by the Act?
The Act protects people from discrimination on the basis of protected characteristics. The relevant characteristics for private clubs and other associations are as follows:

• disability
• gender reassignment
• pregnancy and maternity
• race – this includes ethnic or national origins, colour and nationality
• religion or belief – this includes lack of belief
• sex
• sexual orientation

What should private clubs and other types of associations know?
A quick start guide, published by the Government Equalities Office, explains how the Act regulates the way in which private clubs and other types of associations treat their members, associates and guests. It also explains when a private club can restrict its membership and membership benefits to people who share a particular protected characteristic. Clubs, societies and other associations will need to ensure that they are complying with their obligations.

What has changed?
For private clubs, societies and other associations admitting members and providing benefits, facilities and services, there are some important matters to be aware of.  The main change is that the Act builds on the previous obligations on associations not to discriminate because of disability, race and sexual orientation by extending the ban on discrimination to also cover gender reassignment, pregnancy and maternity, religion or belief and sex.

Disability
The protected characteristic of disability applies to a person who has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. To qualify for protection from discrimination, a disabled person no longer has to show that their impairment affects a particular ‘capacity’, such as mobility or speech, hearing or eyesight. For further details, you should read the Disability Quick Start Guide at: www.equalities.gov.uk/pdf/401727_EDF_ Disability_acc.pdf

Age
From 1^st October 2012, a private club or association cannot, without sufficient reason, discriminate against club members and guests because of age.  If a private club or association wants to treat members and guests differently because of their age there are various circumstances (exceptions) where this is still allowed by the law. There are two exceptions from the ban which will be of particular interest to private clubs and associations:

• Concessions – allows private clubs and associations such as golf clubs to offer concessions to members above/below a certain age or based on ‘long service/membership’.
• Sport – allows for the continuation of age-restricted sports competitions, for example, under-21s’ football competitions and tennis veterans’ competitions.

This means that, for example: − private clubs or associations for people of particular age groups or ages will continue to be able to operate. For example, clubs for ‘under 20s’ and ‘pensioners’ clubs’.  Private clubs or associations can use age to determine eligibility for concessions, discounts or the like.

If an organisation has other policies or practices which amount to age discrimination in the provision of services, and they do not come within an exception, they will still be lawful if they can be ‘objectively justified’. In other words, a private club or association must be able to show good reason for the policy or practice. Objective justification is showing that any age discrimination is a proportionate means of achieving a legitimate aim.

Gender Reassignment
The protected characteristic of gender reassignment applies to a person who is proposing to undergo, is undergoing or has undergone a process to change their sex. To qualify for protection from discrimination a transsexual person no longer has to show that they are under medical supervision. For further details see the Gender Reassignment Quick Start Guide at: www.equalities.gov.uk/pdf/14314%20EDF%20Gender%20Quick%20start%2011th.pdf

Previously, protection extending wider than the person’s own protected characteristic (such as protection from discrimination because of perception or association) applied only to race, religion or belief and sexual orientation. Now it also applies to sex, disability and gender reassignment.

Members and Associates
It is unlawful for a private club or other association to discriminate against, harass or victimise an existing or potential member or an associate. Previous legislation outlawed discrimination by associations against existing or potential members and associates because of race, disability and sexual orientation. The Act extended this protection to gender reassignment, pregnancy and maternity, religion or belief and sex.

Guests
It is unlawful for a private club or other association to discriminate against, harass or victimise a guest or potential guest of the association. A private club cannot refuse to invite a person as a guest of the club, or invite the person on less favourable terms, such as by imposing special conditions, because of the guest’s protected characteristic.

Previously, guests and potential guests were protected from discrimination only because of disability. The Act extends protection for guests to also cover gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Reasonable adjustments for disabled members, associates and guests
Private clubs and other associations must make reasonable adjustments to allow disabled people to become members or associates and for them and any disabled guests to participate in their activities. A club may need to make adjustments to a policy or practice, such as relaxing a ban on animals for people who use assistance dogs. It may have to provide an auxiliary aid, such as providing information in accessible formats. It may have to make physical adjustments to parts of its premises. A club is only required to make adjustments that are reasonable in all the circumstances. What is reasonable will depend on factors such as the practicability and cost of making the adjustment. However, a private club is not required to do anything that will alter the fundamental nature of the club and what it does.

The point at which the duty to make reasonable adjustments arises has changed. Reasonable adjustments need to be made to avoid a disabled person experiencing a substantial disadvantage in comparison with non-disabled people.

Clubs and other associations for people who share a protected characteristic
The Act allows private clubs and other associations (except political parties) to restrict membership to people who share protected characteristics.

The Act maintains the previous exceptions allowing clubs to restrict their membership according to race and sexual orientation and extends it, in line with the extended protection from discrimination, to also cover gender reassignment, pregnancy and maternity, religion or belief, and sex. However, it is still unlawful for a private club that restricts its membership to people who share particular protected characteristics to discriminate against members, associates, or guests because of other protected characteristics.

In the case of disability, sharing a protected characteristic means sharing the same disability. Such a club may refuse membership to a disabled person who does not have the particular impairment it caters for.

A private club or other association cannot restrict membership on the basis of skin colour, but it can restrict membership based on ethnic origin. However, although the rules defining who can join must not use colour, a club could have a name that refers to colour. Example The constitution of the Black Women’s Culture Club states that membership is open to any woman whose national origins are in Africa or the Caribbean. This would be permitted because, even though colour is referred to in the name, it restricts membership based on ethnic origin rather than colour. A private club that restricts membership to people with a particular protected characteristic may also place similar restrictions on access by associates and guests.

How is the Act enforced?
A private members club or association which falls foul of the Act can face civil proceedings. An aggrieved member or guest (or someone who wanted to join or visit but was deterred or rejected) can bring proceedings.

Citizens Advice say that time limits for making a court claim are:

• Within 6 months less one day from when the alleged discrimination happened. The court must have received the claim before the end of the time limit, it’s not enough just to post it. For example, if the discrimination happened on the 13^th February, the court must receive the claim before midnight on the 12^th
• If the alleged discrimination takes place over a period of time, the discrimination is said to be continuing and the time limit starts to run at the end of that period of time. If the incidents are isolated or unconnected, the discrimination isn’t continuing and the time limit runs from each of the separate incidents. If necessary, it’s the courts which will decide if the discrimination is continuing and if the claim was brought in time.
• If the alleged discrimination took place at work, the time limit is 3 months.

If a complainant is successful, the court can award compensation for injured feelings, make an injunction and/or a formal declaration that the person has been discriminated against.

Insurance Protection
If your club or association is unincorporated (not being a company), the members and the committee are financial guarantors for in the event of liquidation, bankruptcy, etc.  There is no insurance policy to insure against this eventuality but conversion to a limited company or a company limited by guarantee may be an alternative to insurance protection.

However, there are insurance policies available to protect committee members from being sued for their actions – such as a breach of duty, breach of trust or any other ‘wrongful act’ or breach of the requirements of the Act in relation to selection or rejection of new members or other aspects of the Act. In such cases, taking out Management or Officers Liability may provide a solution. Such insurance usually comes with optional limits of indemnity.

There are specialist insurers and brokers who can advise on these matters. Do a Google search for Insurance for clubs and associations to make further enquiries if necessary.

Status of this paper
This paper is not an exhaustive summary of the Act. It is intended to remind club committees and officers to be mindful of the provisions of the Act as regards members as well as prospective members and guests. When in doubt, taking legal advice is essential. When considering matters such as an application for membership, it is important that any decision taken can be objectively justified.

What Help is available?
As a club, society or other association there are several parts of the Act that you need to be aware of. Guidance can be found online at:

• Equality and Human Rights Commission: The nine protected characteristics: https://www.equalityhumanrights.com/en/equality-act/protected-characteristics
• Acas: Your responsibilities as an employer https://www.acas.org.uk/index.aspx?articleid=3128
• UK: Your responsibilities as a service provider www.equalities.gov.uk/pdf/GEO_EqualityLaw_Business_acc2.pdf
• Government Equalities Office: Quick Guide https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85018/private-clubs.pdf
• Equality and Human Rights Commission: Your rights to equality as a member, associate member or guest of an association, club or society (see note below) https://www.equalityhumanrights.com/en/publication-download/your-rights-equality-member-associate-member-or-guest-association-club-or
• Government Equalities Office: Ban on age discrimination in the provision of services, public functions and associations – A guide for private clubs and other associations https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85005/age-discrimination-guide-clubs.pdf

Acknowledgement: Some of the above information above is derived from Government sources and Crown Copyright © therein is duly acknowledged.