When are charities allowed to discriminate?

Part of the Act covers discrimination when providing goods, facilities or other services, and another part covers discrimination in the workplace.

It will usually be unlawful to discriminate against someone on the basis of a 'protected characteristic', which means that person's age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. 

However, sometimes you can rely on a defence which says that you haven't acted unlawfully even if you have discriminated. 

In most cases, you can only rely on a defence if your actions were 'a proportionate means of achieving a legitimate aim'. To be 'proportionate', the actions taken must be rationally connected to the aim, must be no more than is necessary to achieve the aim, and any disadvantage caused must not be disproportionate.

R (on the application of Z and another) v Hackney London Borough Council and another

Agudas Israel Housing Association Ltd ("AIHA") is a charity. Its charitable purposes are to provide social housing to people in need, primarily people in the Orthodox Jewish Community. AIHA provides social housing via a portal on Hackney Council's website.

A claim was brought against AIHA and Hackney Council by a single mother with four young children, who was not a member of the Orthodox Jewish community. Although she was on Hackney Council's highest priority list of people in need of housing, she had to wait for a property to become available while larger properties owned by AIHA were allocated to members of the Orthodox Jewish community who were in need. She said that she had been discriminated against on the basis of her race and/or religion because members of the Orthodox Jewish community were prioritised over her.

The Supreme Court decided that AIHA and Hackney Council had discriminated against the claimant because they had treated her less favourably on the basis of her religion. However, this discrimination was not unlawful.

Under the Equality Act, charities can restrict their benefits to people who share a certain protected characteristic as long as this is set out in their governing document, and either:

1. it is a proportionate means of achieving a legitimate aim; or
2. the restriction is to counteract a disadvantage linked to the protected characteristic.

In this case, the reason AIHA restricted its provision of social housing to the Orthodox Jewish community was because they were among the most deprived families in the area, so AIHA could rely on the defence in (b) above.

Interestingly, the court said that where a charity relies on this defence (i.e. part (b) above) they do not have to show that their actions were a proportionate means of achieving a legitimate aim (as they would under part (a) above). This defence is therefore relatively unique.

1. (on the application of Cornerstone (North East) Adoption and Fostering Service Ltd) v Office for Standards in Education, Children's Services and Skills (OFSTED)

Cornerstone (North East) Adoption and Fostering Service Ltd ("Cornerstone") is a charity that operates as an independent fostering agency. Its charitable purposes are to provide a high quality adoption and fostering child care service according to Christian principles. 

Cornerstone had a Code of Practice which required staff and volunteers to be evangelical Christians and to refrain from 'homosexual behaviour'. In practice, Cornerstone only recruited carers who were evangelical married heterosexual couples. 

OFSTED wrote a report about Cornerstone which said that Cornerstone must change its recruitment policy because it violated the Equality Act. Cornerstone brought a judicial review claim against OFSTED arguing that its report was wrong.

The High Court decided that Cornerstone's policy of only recruiting heterosexual carers and requiring staff and volunteers to refrain from 'homosexual behaviour' was 'clearly, directly, and unambiguously' discrimination against non-heterosexuals. In addition the court decided that this policy was not a proportionate means of achieving a legitimate aim and that Cornerstone was therefore acting unlawfully.

The Court also considered whether Cornerstone's policy of only recruiting evangelical Christians was unlawful discrimination. This is the point that is particularly interesting about this case.

The Court decided that Cornerstone was allowed to have a policy of recruiting only evangelical Christians. Under the Equality Act, if you are a non-commercial organisation and your purpose is to practice, advance, teach etc. a religion or belief, then you are allowed to restrict who participates in your organisation in some circumstances as long as it's necessary to achieve your religious aims or to avoid causing offence to people who share the religion or belief. This meant that Cornerstone wasn't acting unlawfully regarding this part of its policy.

However, the Court also said that OFSTED was allowed to tell Cornerstone to change this part of its policy, even though it was not unlawful. The reason given by the Court was that changing the policy would not prevent Cornerstone's staff from worshipping and practicing their religion.

These cases provide an interesting insight into when charities may be able to discriminate against certain groups, but they also remind us of the limits to some of the defences available under the Equality Act 2010. If you have questions about your charity's policies or practices, or if you are unsure about whether your charity can rely on a defence to discrimination, please get in touch with one of our specialist charity lawyers.