Religious Charities update - Winter 2010

Welcome to the latest edition of our religious charities update. Our aim is to provide informative updates in an accessible form on legal issues affecting religious charities. In this edition we report on the Equality Act 2010 and focus on how the new Act will affect religious charities.

The article takes a look at the relevant case law and in particular the much talked about Catholic Care (Diocese of Leeds) case.

We are also very pleased to include in this edition a guest article written by Joshua Winfield who was Junior Counsel to the representative defendant in the Russian Orthodox charitable trust dispute case (Dean v Burne). In his article he gives us an invaluable insight into this high profile case.

Finally, we have included a property update regarding the Government's recent consultation relating to the proposed changes to the definition of "Qualified Surveyor" in Section 36(4) of the Charities Act 1993.

We hope that you find the articles informative and useful and if you have any comments on the topics covered please let us know.

Employment law update

Implications of the Equality Act 2010 for religious charities

The implementation of the Equality Act 2010 (the "Act") on 1 October 2010 consolidated previous discrimination legislation into one Act and enshrined additional principles regarding discriminatory behaviour that have developed through case law. The Act addresses discrimination on the grounds of the following 9 "protected characteristics":

Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief Sex Sexual orientation The Act renders it unlawful to discriminate against an individual on the basis of a protected characteristic, in relation to several areas including employment and the provision of goods and services. The protected characteristics most likely to pose challenges for religious charities are religion or belief, sex and sexual orientation.

Charities can benefit from an exemption which permits them to limit those who benefit from their operation on the grounds of a protected characteristic. However, an individual's human rights are important and therefore any discriminatory infringement must be both justified and proportionate.

As there is no limit on the amount of compensation that can be awarded in discrimination claims brought in the Employment Tribunal, it is essential that religious charities operate in compliance with the Act.

Types of discrimination

Indirect discrimination

Indirect discrimination occurs where a provision, criterion or practice ("PCP") is not intended to treat anyone less favourably but nevertheless has the effect of putting people with a protected characteristic at a disadvantage. An employer can objectively justify the PCP, provided that it is a proportionate means of achieving a legitimate aim.

Association and perception

Prior to the Act, legislation was inconsistent in prohibiting discrimination because of a perceived protected characteristic or because an individual was associated with someone with a protected characteristic. An example of perceptive discrimination would be treating an individual less favourably on the basis that they appear to be homosexual when, in fact, they are heterosexual. Associative discrimination would occur, for example, where an individual is treated less favourably because their spouse, or brother, is Catholic. Associative and perceptive discrimination now apply to all protected characteristics except marriage and civil partnership.

Religion or belief

It is unlawful to discriminate against an individual because of their religion or belief (or indeed their lack of any such belief), unless the treatment can fall within one of the exceptions under the Act. These exceptions include: an occupational requirement having regard to the nature or context of the work; where employment is for the purposes of an organised religion; and for employers with a faith-based ethos. Case law...