A charity’s duty to not discriminate or harass

The Charity Commission’s guidance on safeguarding states that charities must take steps to ensure they don’t discriminate or harass.

The key law that tackles discrimination and promotes equality is the Equality Act 2010. As a general rule, it protects someone from discrimination if they have, or are perceived to have, or associate with people who have one of the following protected characteristics:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

Any voluntary organisation or charity that provides goods, facilities or services has a duty to not discriminate against anyone with a protected characteristic. It doesn’t matter whether the goods, facilities or services the organisation provides are free or paid-for. These organisations also have a duty to not discriminate when they employ someone.

If your organisation is an association, or provides education, transport or housing, you also have other duties to protect people from discrimination. The table below sets these out.

If an employee or volunteer breaks equality law by unlawfully discriminating against a person, both the individual and the organisation they work or volunteer for could be held legally responsible.

There are a small number of occasions where discrimination might be legally justified. For example, organisations can sometimes treat people less favourably if they can prove that it’s the only way to achieve a legitimate aim. This aim must be a real, objective consideration and not in itself discriminatory. There must also be no alternative way of doing things or making decisions which could achieve the aim which would be less discriminatory. This is known as having an ‘objective justification’ for the discrimination.

Duty to not discriminate directly

It’s unlawful for organisations caught by the Act to discriminate against someone because of a protected characteristic.

When the treatment is because of the age of the person, it may be permissible if you can show that there is an objective justification.

Reference: Section 13 of the Equality Act 2010

Duty to not discriminate indirectly

It’s unlawful for organisations caught by the Act to apply a policy, criterion or practice that disadvantages a group of people who share a particular protected characteristic, compared with those who do not share that characteristic, if there isn’t an objective justification for doing so.

Reference: Section 19 of the Equality Act 2010

Duty to not discriminate arising from someone’s disability

It’s unlawful for organisations caught by the Act to treat a disabled person unfavourably because of something arising from, or in consequence of, their disability, if there isn’t an objective justification for doing so.

Reference: Section 15 of the Equality Act 2010

Duty to make reasonable adjustments for disabled people

Under the Equality Act, certain organisations (such as employers, service providers and those exercising public functions) have a duty to make ‘reasonable adjustments’ for disabled people.

This means that they must take reasonable steps to remove any disadvantage experienced by a disabled person compared with those who are not disabled. They can do this by changing the way that individual works, or their working environment.

Reference: Section 20 of the Equality Act 2010

Duty to not harass

Organisations that provide goods, facilities or services must not do anything that constitutes harassment. In this context, harassment means unwanted conduct that’s related to a protected characteristic, as well as that of a sexual nature, which is intended to create an intimidating, hostile, degrading, humiliating or offensive environment, or violate someone’s dignity.

This does not apply to the characteristics of pregnancy and maternity, and marriage and civil partnership.

Reference: Section 26 of the Equality Act 2010

Duty to not victimise

Organisations that provide goods, facilities or services must not discriminate against someone because they have, or appear to have:

• initiated court proceedings under the Equality Act
• given evidence or information in connection with such proceedings
• done anything else connected to such proceedings
• made an allegation against someone for contravening the act.

This includes where someone has supported someone complaining about discrimination.

Reference: Section 27 of the Equality Act 2010

Responsibility for actions of employees and other agents

Employers can be held responsible for acts of discrimination, harassment or victimisation committed by their employees in the course of employment.

Employers are also liable for acts of discrimination, harassment or victimisation committed by anyone working on their behalf – for example, partners or volunteers.

It does not matter whether the employer knows about or approves of these acts.

Employees who commit an unlawful act against service users, members, guests or associates, while carrying out duties or while providing or delivering services, will usually be regarded as ‘acting in the course of their employment’.

Employers are not liable for unlawful acts committed by their employees if they’ve taken all possible reasonable steps to prevent the acts.

Reference: Sections 109 and 110 of the Equality Act 2010

Reference: Nailard v Unite [2018] EWCA Civ 1203

Duty to not instruct, cause or induce discrimination

Organisations must not instruct or induce someone to discriminate against, harass or victimise another person, or to attempt to do so.

This applies whether or not the instruction is carried out, provided the recipient or intended victim is harmed as a result.

This only applies if it can be shown that there’s a relationship between the person giving the instruction and the person receiving it – such as an employer and employee relationship.

Reference: Section 111 of the Equality Act 2010

Power of a charity to restrict their activities to certain groups

Charities are allowed to only benefit people who share a protected characteristic if it can be justified because:

• the charity’s aim is to tackle a particular disadvantage faced by that group
• it seeks to achieve some other legitimate aim in a fair, balanced and reasonable way.

The charity must also state this mission in their governing document.

Reference: Sections 193 and 194 of the Equality Act 2010

Reference: Charity Commission guidance on the Equality Act

Guidance to help meet non-discrimination duties

The Equality and Human Rights Commission has produced statutory codes of practice to help courts, tribunals and others interpret and apply the law:

• Equality Act codes of practice

The Equality and Human Rights Commission has produced non-statutory guidance for voluntary and community organisations:

• Equality law – Voluntary and Community Organisations