Introduction

Before the Equality Act 2010, the United Kingdom had several pieces of legislation that aimed to address and prevent discrimination in various areas. Some of the key laws that were in place were:

• Sex Discrimination Act 1975: This legislation made it illegal to discriminate against individuals based on their sex or marital status. It covered areas such as employment, education, housing, and the provision of goods and services.
• Race Relations Act 1976: This act prohibited racial discrimination in various areas, including employment, education, housing, and the provision of goods and services. It aimed to promote equal opportunities and tackle racial discrimination and harassment.
• Disability Discrimination Act 1995: This law aimed to protect individuals with disabilities from discrimination. It made it unlawful to discriminate against disabled people in employment, education, and providing goods, facilities, and services.
• Equal Pay Act 1970: This legislation aimed to ensure that men and women receive equal pay for equal work. It prohibited employers from discriminating against employees based on their gender in terms of pay and conditions of employment.
• Age Discrimination Act 2006: This act aimed to prevent age discrimination in employment and vocational training. It prohibited unfair treatment on the grounds of age and promoted equal opportunities for individuals of all ages.
• Equality Act 2006: This act established the Equality and Human Rights Commission, a statutory body responsible for promoting and enforcing equality laws. While that act was not as comprehensive as the Equality Act 2010, it laid the groundwork for the later legislation.

These laws provided protection against discrimination in specific areas, but they were consolidated and expanded upon by the Equality Act 2010, which brought together various strands of discrimination into a single piece of legislation. The Equality Act 2010 (“the Act”), which came into force on 1^st October 2010, replaced previous anti-discrimination laws with a single Act. It simplified the law, removed inconsistencies and made it easier for people to understand and comply with it.

The Act also strengthened the law in important ways to help tackle discrimination and inequality and brought together, harmonised and, in some respects, extended previous equality law. The aim was to make the law more consistent, clearer and easier to follow, to make society fairer.

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

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

Defining an ‘Association’
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 doesn’t matter whether a club or association is incorporated (for example, as a company limited by guarantee) or whether it is an unincorporated organisation, 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 deemed to be associations 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 nightclub or a gym – these are covered by different provisions which apply to Service Providers.
• A trade organisation.

Nightclubs and gyms are not considered associations because they typically operate on a different model. Nightclubs are establishments primarily open to the public on payment of an entry fee, while gyms are considered service providers that offer access to their facilities for a fee. These establishments are covered by different provisions that apply specifically to service providers rather than associations. See the Guidance for Service Providers about duties under the Equality Act 2010 on the Equality and Human Rights Commission website.

Trade organisations, on the other hand, refer to professional or industry-specific bodies that represent the interests of businesses or individuals within a particular sector. They are not considered associations in the context of the Equality Act 2010.

When can Discrimination be Justified?
The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination, which is against the Equality Act, is unlawful. If you’ve experienced unlawful discrimination, you can take action about it under the Act. Discrimination is the unequal treatment of an individual or a number of individuals who are considered protected persons under the terms of the Equality Act 2010.

If someone feels they have been discriminated against, they can make a discrimination claim in the civil courts.

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, the courts will decide if discrimination can be justified.

Discrimination can be justified if the person or entity taking the discriminatory action can show that it is a proportionate means of achieving a legitimate aim. For example, if a private club restricts membership to a particular age group to create an environment conducive to specific activities or socialisation, this could potentially be considered justified discrimination.

Who is Protected by the Act?
The Act protects people from discrimination based on 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 how 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 must make sure they comply with their obligations.

What Changed with the 2010 Act?
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 with 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. Click here to access the guide.

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.

It means that 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, etc.

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 proposing to undergo, is undergoing or has undergone a process to change their sex. To qualify for protection from discrimination, a transgender person no longer has to show they are under medical supervision. For further details, click here for the Gender Reassignment Quick Start Guide.

Previously, protection extending wider than the person’s protected characteristic (such as protection from discrimination because of perception or association) applied only to race, religion, 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. Discrimination against guests based on protected characteristics would include situations where a private club refuses to invite a person as a guest or imposes special conditions on them due to their protected characteristics. For example, if a club denies someone access as a guest because of their race or religion, that would be considered discrimination in this context. Discrimination can also include treating guests less favourably, providing inferior services or benefits, or subjecting them to harassment based on their protected characteristics. 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.

It’s important for clubs and associations to assess each situation individually and make adjustments that are practical and reasonably achievable in the context of their resources and circumstances.

The point at which the duty to make reasonable adjustments arises has changed. Reasonable adjustments must be made to avoid a disabled person experiencing a substantial disadvantage compared to 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 based on 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 skin colour – for 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. They can seek legal advice and file a claim within the time limits specified by the law.

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

• Within six 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 of February, the court must receive the claim before midnight on the 12^th of August.
• 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, the courts will decide if the discrimination is continuing and if the claim was brought in time.
• The time limit is three months if the alleged discrimination occurred at work.

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.

It’s important to note that the specific details and processes related to enforcement and legal remedies can vary, and individuals should consult legal professionals or relevant authorities for accurate and up-to-date information in their jurisdiction.

Insurance Protection
If your club or association is unincorporated (not being a company), the members and the committee are financial guarantors in the event of liquidation, bankruptcy, etc.  There is no insurance policy to insure against insolvency, 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 concerning the selection or rejection of new members or other aspects of the Act. Taking out Management or Officers’ Liability insurance may provide a solution. Such insurance, which is usually expensive, often comes with optional indemnity limits to reduce costs.

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.

This paper is not advice. 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, you must know several parts of the Act. 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/advice
• UK: Your responsibilities as a service provider: https://www.equalityhumanrights.com/en/advice-and-guidance/guidance-service-providers
• Government Equalities Office: Quick Guide: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85026/vcs-positive-action.pdf and 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 and https://www.equalityhumanrights.com/sites/default/files/equalityguidance-associationclubsociety-2015-final.pdf
• 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

Note: The guidance from the Equality and Human Rights Commission applies to England, Scotland and Wales. It has been aligned with the Code of Practice on Services, Public Functions and Associations. Following this guidance should have the same effect as following the Code. In other words, if a person or an organisation who has duties under the Act’s provisions on services, public functions and associations does what this guidance says they must do, it may help them to avoid an adverse decision by a court in proceedings brought under the Equality Act 2010.

Acknowledgement:

1. © Some of the information above is derived from Government sources, and Crown Copyright is duly acknowledged.
2. All pictures in this paper have been provided by Pexels.com.
3. This paper has been compiled from research using information from the sources stated throughout the text, together with information provided by machine-generated artificial intelligence at: bing.com [chat] and https://chat.openai.com

Sources and Further Reading

• https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85037/disability.pdf
• https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85026/vcs-positive-action.pdf
• https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85018/private-clubs.pdf
• https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85005/age-discrimination-guide-clubs.pdf
• https://www.acas.org.uk/advice
• https://www.claims.co.uk/knowledge-base/discrimination-law/private-clubs-and-associations
• https://www.equalityhumanrights.com/en/advice-and-guidance/core-guidance-clubs-societies-and-associations
• https://www.equalityhumanrights.com/en/advice-and-guidance/guidance-service-providers
• https://www.equalityhumanrights.com/en/advice-and-guidance/what-equality-law-means-your-membership-association
• https://www.equalityhumanrights.com/en/equality-act/protected-characteristics
• https://www.equalityhumanrights.com/en/publication-download/your-rights-equality-member-associate-member-or-guest-association-club-or
• https://www.equalityhumanrights.com/sites/default/files/equalityguidance-associationclubsociety-2015-final.pdf
• https://www.gov.uk/government/publications/voluntary-and-community-sector-quick-start-guide-to-gender-reassignment-for-service-providers
• https://www.stammeringlaw.org.uk/services/associations/
• https://www.legislation.gov.uk/ukpga/2010/15/part/7

Books:

• Equality, Diversity & Inclusion: The Practical Guide: The essential handbook for terminology and communicating inclusion with dignity, Paperback – 16 Jan. 2021, by Tony Malone (Author), independently published, available at: https://www.amazon.co.uk/Equality-Diversity-Inclusion-terminology-communicating/dp/B08T4DGF2G/
• Blackstone’s Guide to the Equality Act 2010 (Blackstone’s Guides), Paperback – 23 Feb. 2021, by Anthony Robinson (Editor), David Ruebain (Editor), Susie Uppal (Editor), published by OUP Oxford, available at: https://www.amazon.co.uk/Blackstones-Guide-Equality-2010-Guides/dp/0198870876/
• Equality Act 2010 (UK), Paperback – 2 Apr. 2018, by The Law Library (Author), published by CreateSpace Independent Publishing Platform, available at: https://www.amazon.co.uk/Equality-Act-2010-Law-Library/dp/1987483685/
• Equality: The Legal Framework, Paperback – Large Print, 16 Oct. 2014, by Bob Hepple (Author), published by Hart Publishing, available at: https://www.amazon.co.uk/Equality-Legal-Framework-Bob-Hepple/dp/1849466394/
• Discrimination and Disparities, Hardcover – 25 Aug. 2022, by Thomas Sowell (Author), published by Basic Books, available at: https://www.amazon.co.uk/Discrimination-Disparities-Thomas-Sowell/dp/1541645634/
• Gender, Sexualities and Law, Paperback – 14 Apr. 2012, by Jackie Jones (Editor), Anna Grear (Editor), Rachel Anne Fenton (Editor), Kim Stevenson (Editor), published by Routledge, available at: https://www.amazon.co.uk/Gender-Sexualities-Law-Jackie-Jones/dp/0415628741/

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