Exceptions: charities and religion or belief organisations

As well as the exceptions which apply to every service provider and positive action, there are additional exceptions for:

• charities
• religion or belief organisations.

If you are a charity you are allowed to restrict your benefits (which include the services you offer) to people with a particular protected characteristic if:

• that is included in your charitable instrument, and either
• it is objectively justified, or
• it is done to prevent or compensate for disadvantage linked to the protected characteristic.

A charitable instrument is the document establishing or governing a charity. The charitable instrument usually sets out the charity’s purposes, how its income can be spent and generally how the charity will operate.

However, charities cannot restrict their services on the basis of a person’s colour, such as ‘black’ or ‘white’. If the charitable instrument includes a restriction to people of a particular colour, it will be read as if that restriction did not exist.

This is a difficult legal question which is beyond the scope of this guide to provide a definitive answer to. If your charitable instrument allows you or even requires you to restrict your benefits to people with a particular protected characteristic:

• You should read the Code of Practice, which tells you more about what the law says and how it might be applied.
• You and your trustees need to decide if the restriction meets either of the other two tests. If it does not, then you should stop applying the restriction.
• You can obtain advice from the Charity Commission if you are in England and Wales or the Scottish Charity Regulator if you are in Scotland.
• If necessary, you should obtain independent legal advice.
• If anyone challenges your decision to go on restricting your benefits, then the courts will decide whether the tests are met.

Events or activities

An event or activity held to promote or support a charity can be restricted to one sex only.

Membership

If a charity is offering membership, it can ask someone to make a statement to say or imply that they are a member of a particular religion or belief, or accept that religion or belief in order to become a member of the charity, and can also refuse members access to benefits if they do not accept that religion or belief, but only as long as this requirement has existed since before 18 May 2005.

Other than these exceptions, a charity must not treat a person worse than someone else because of a protected characteristic in relation to the benefits they provide or the way they provide them. 

If you are a religion or belief organisation, there are some exceptions to equality law that only apply to the services you provide.

‘Services’ in this context does not mean religious acts of worship (which are not covered by equality law at all) but something a person or organisation does for the public or a section of the public.

In both these situations, there is an additional test which must be satisfied. This is set out below.

Religion or belief organisations can, in certain circumstances, discriminate because of some protected characteristics in the way they operate. Unlike charities, they do not need a charitable instrument or to meet particular tests to be able to restrict their services.

In some situations, religion or belief organisations and people acting on their authority can restrict or refuse:

• membership of the organisation
• participation in its activities
• the use of any goods, facilities or services that it provides, and
• the use of its premises
• because of a person’s religion or belief or their sexual orientation.

In addition, a minister can restrict participation in activities carried out in the performance of their functions as a minister connected with a religion or belief organisation (or the provision of goods, facilities or services in the course of such activities) because of a person’s religion or belief or their sexual orientation.  

A person’s religion or belief

In relation to a service user’s (or would-be service user’s) religion or belief, the exception only applies where a restriction is necessary:

• to comply with the purpose of the religion or belief organisation, or
• to avoid causing offence to members of the religion or belief that the organisation represents.

For example, if either of these conditions is met, a religion or belief organisation can ask people to sign up to a statement of beliefs in order to become a member.

Or it could say that no activities related to other religions or beliefs should take place in the building it uses.

A person’s sexual orientation

In relation to sexual orientation, the exception only applies only where it is necessary:

• to comply with the doctrine of the organisation, or
• in order to avoid conflict with the strongly held convictions of a significant number of the members of the religion or belief that the organisation represents.

For example, if either of these conditions is met, a religion or belief organisation can refuse membership to someone because of the person’s sexual orientation.

Or, alternatively, it could decide not to let its building be used by particular people or groups because of their sexual orientation.  

If a religion or belief organisation contracts with a public body to carry out an activity on that body’s behalf, the organisation cannot discriminate because of sexual orientation in relation to that activity.

These exceptions do not apply to an organisation whose sole or main purpose is commercial, where the services or premises and so on are normally provided for payment, eg the trading arm of a religious organisation. 

A minister of religion or someone else in a similar position within a religious organisation can provide separate services for men or boys and women or girls or only provide services for one sex or the other if:

• the service is provided for the purposes of an organised religion, and
• it is provided at a place which is (permanently or temporarily) used for those purposes, and
• the way the service is restricted is necessary in order to comply with the doctrines of the religion or for the purpose of avoiding conflict with the strongly held religious convictions of a significant number of the religion’s followers.

This does not affect religious services and acts of worship because equality law does not cover these at all, but it allows people taking part in associated activities to be separated by sex if these conditions are met.