SANDY ADIRONDACK
Legal and governance training and consultancy
for the voluntary sector
OTHER CHAPTERS
I. THE ORGANISATION

Ch.1: Setting up an organisation
Ch.2: Unincorporated organisations
Ch.3: Incorporated organisations
Ch.4: Charitable status, charity law & regulation
Ch.5: The organisation's objects
Ch.6: The organisation's name
Ch.7: The governing document
Ch.8: Registering as a charity
Ch.9: Branches, subsidiaries & group structures
Ch.10: Changing legal form
Ch.11: Collaborative working, partnerships and mergers
II. GOVERNANCE
Ch.12: Members of the organisation
Ch.13: Members of the governing body
Ch.14: Officers, committees & sub-committees
Ch.15: Duties & powers of the governing body
Ch.16: Restrictions on payments & benefits
Ch.17: The registered office & other premises
Ch.18: Communication & paperwork
Ch.19: Meetings, resolutions & decision making
Ch.20: Assets & agency
Ch.21: Contracts & contract law
Ch.22: Risk & liability
Ch.23: Insurance
Ch.24: Financial difficulties & winding up
III. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.25: Employees & other workers
Ch.26: Rights, duties & the contract of employment
Ch.27: Model contract of employment
Ch.28: Equal opportunities in employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
Ch.31: Working time, time off & leave
Ch.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
Ch.34: Termination of employment
Ch.35: Redundancy
Ch.36: Employer-employee relations
Ch.37: Employment claims & settlement
Ch.38: Self employed & other contractors
Ch.39: Volunteers
IV. SERVICES & ACTIVITIES
Ch.40: Health & safety
Ch.41: Safeguarding children & vulnerable adults
Ch.43: Data protection & use of information
Ch.44: Intellectual property
Ch.45: Publications, publicity & the internet
Ch.46: Campaigning & political activities
Ch.47: Public events, entertainment & licensing
V. FUNDING & FUNDRAISING
Ch.48: Funding & fundraising: General rules
Ch.49: Fundraising activities
Ch.50: Tax-effective giving
Ch.51: Trading & social enterprise
Ch.52: Contracts & service agreements
VI. FINANCE
Ch.53: Financial procedures & security
Ch.54: Annual accounts, reports & returns
Ch.55: Auditors & independent examiners
Ch.56: Corporation tax, income tax & capital gains tax
Ch.57: Value added tax
Ch.58: Investment & reserves
Ch.59: Borrowing
VII. PROPERTY
Ch.60: Land ownership & tenure
Ch.61: Acquiring & disposing of property
Ch.62: Business leases
Ch.63: Property management & the environment
VIII. BACKGROUND TO THE LAW
Ch.64: How the law works
Ch.65: Dispute resolution & litigation
UPDATED INFORMATION FOR CHAPTER 42:
THE RUSSELL-COOKE
VOLUNTARY SECTOR LEGAL HANDBOOK

This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

To avoid spamming, an email address is not given on screen. If you can't see the word 'here' or have trouble sending an email by clicking on it, the address is bookservice at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.


Chapter 42
EQUAL OPPORTUNITIES: GOODS, SERVICES AND FACILITIES


The items below formerly appeared on the legal update website for voluntary organisations and are archived here. The content may be out of date and links may not work. For current updates to the chapter, see the legal update website for voluntary organisations at www.sandy-a.co.uk/equalops.htm.

For information about the Equality Act 2010, see archived items for chapter 28, Equal opportunities in employment

.

RESOURCES

Equality Advisory and Support Service
Updated 16/10/12. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2012 information, advice and support on discrimination and human rights are being provided by a new Equality Advisory and Support Service (EASS) rather than the Equality and Human Rights Commission. Funded by the government (as the EHRC service was), EASS is aimed at individuals in England, Wales and Scotland who need more expert advice and support on discrimination and human rights than advice agencies and other local organisations can provide. It will explain options for informal resolution, conciliation or mediation services, and for those who want to take legal action will help to establish eligibility for legal aid and if they are not eligible, will help find an accessible legal service to prepare and lodge a claim themselves.

The EASS website is at www.equalityadvisoryservice.com.

The service is being run by Sitel, working with Disability Rights UK, the Law Centres Federation, Voiceability, the British Institute of Human Rights and the Royal Association for Deaf People.

Sitel is a global company with 57,000 employees, "delivering telephony based customer relationship management solutions and project management". According to its website, "For over 15 years, Sitel has been a leading provider of Business Process Outsourcing (BPO) solutions in the UK, offering clients unprecedented partnership value in the delivery of multi-channel customer contact interactions across all stages of the customer relationship lifecycle." If I knew what it meant, I might be impressed that they are running a discrimination and human rights advice and support centre. On the other hand, I probably would not.
.

Other resources
Added 18/4/12. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Improving equality and diversity: A guide for third sector CEOs was published on 1 December 2011 by ACEVO, the Association of Chief Executives of Voluntary Organisations. It is intended to offer practical advice on how CEOs, staff and governing bodies of small and medium sized third sector organisations can tailor action on diversity to their particular organisation. It can be downloaded free of charge via tinyurl.com/crutpyu.


CATHOLIC ADOPTION AGENCY IN GLASGOW FAILS SCOTTISH CHARITY TEST

Updated 9/12/13. This information updates s.42.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In a situation similar to Catholic Care (Diocese of Leeds) [see above], the Office of the Scottish Charity Regulator (OSCR) issued a direction to a Catholic adoption agency in January 2013, to change its guidance and procedures for assessing initial enquiries from potential adopters, which discriminated against same sex couples and non-Roman Catholics, by 22 April 2013. Failure to do so would mean that it would fail the charity test in the Charities and Trustee Investment (Scotland) Act 2005 and would be removed from the register of charities and lose its charitable status. The charity has not changed its guidance and procedures, and has appealed to the Scottish charity appeals panel against the direction. Like the Catholic Care case this case could run and run, through the Scottish courts system and potentially to the supreme court.

St Margaret's Children and Family Care Society, based in Glasgow, is connected to the Roman Catholic Church. Its constitutional objects include assessing the suitability of potential adoptive parents "in accordance with the teachings of the Catholic Church". It does not explicitly refuse to accept applications from same sex couples, but at the initial enquiry stage, its preferred criteria prioritise couples who have been married for at least two years and are Catholic. Lower priority is given to enquirers who have been married less than two years, couples in civil partnerships, single people, and married couples who do not wish to adopt within the Roman Catholic faith.

Following a complaint from the National Secular Society, OSCR carried out a review into the charity. Its report, published in January 2013 and updated on 22 April 2013, can be downloaded from the OSCR website. at www.oscr.org.uk (search for SC028551, scroll down to Directions, and click on the details under the heading Document).

The OSCR report said that because marriage is not available to same sex couples, prioritising married couples constitutes direct discrimination. The charity's preferred criteria also include being Roman Catholic, which the OSCR report said amounts to direct discrimination "on the face of it", although it had received only limited information about how strictly this criterion is applied.

OSCR considered whether the discrimination is lawful under s.193 of the Equality Act 2010, although St Margaret's did not use this as a justification for its restrictions. S.193 allows a charity to limit benefits to people with a particular protected characteristic if it is acting in pursuance of its charitable instrument, and it is a proportionate means of achieving a legitimate aim. [For more about this, see Charity activities and services for specific groups, above.] OSCR accepted that the discrimination is permitted by the charity's constitutional objects, but not that it is a proportionate means of achieving a legitimate aim. Its detailed reasoning is in its report on the case.

The charity's justification for its restrictions was based on sch.23 of the Equality Act, which allows some organisations based on religion/belief to limit services to people of that religion/belief, where this is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion/belief; and/or to discriminate on the basis of sexual orientation in order to avoid conflict with the strongly held convictions of members of the religion/belief. But discrimination on the basis of sexual orientation is not allowed in relation to any activity carried out on behalf of a public authority under a contract with that authority. [For more about these exceptions, see Equalities Act general exceptions for services, above.]

OSCR's view — explained in its report — is that because the adoption service is "public facing", the charity cannot rely on the religious exception to justify its use of the preferred criteria in respect of sexual orientation.

OSCR found that the charity's discrimination against same sex couples, being covered neither by the charity or religious exceptions under the Equality Act, is unlawful. The charity therefore fails the charity charity test because the way it provides public benefit involves unlawful discrimination and is unduly restrictive.

Following this review, OSCR issued a direction giving St Margaret's three months to change its guidance and procedures for enquirers so they comply fully with the requirements of the Equality Act 2010, in particular in relation to religion or belief and sexual orientation. The Scottish government then said it wanted St Margaret's to continue its work, and would work with the charity to find a solution. (As at least one commentator has pointed out, "Executive interference in regulation is not how the system was intended to work".)

On 11 February 2013, St Margaret's asked OSCR to review its decision to issue a direction. Its reasons included:

  • OSCR was in error in its application of the exceptions in the Equality Act;
  • the direction contravenes the charity's right to freedom of thought, conscience and religion under the European convention on human rights;
  • adoption law requires adoption agencies to have regard to the religious background and persuasions of prospective adopters and adoptive children
  • OSCR had not considered the effect on other charitable adoption agencies having dissociates themselves from the Roman Catholic church.
The review, carried out by the OSCR board and published on 4 March 2013, found that:
  • the charity discriminates directly on grounds of religion or belief and on the ground of sexual orientation;
  • the Equality Act 2010 exception for charities does not apply to the charity or the the ways in which the charity discriminates;
  • the ECHR rights in regard to religion do not apply in the case of the charity, which is not a church or a religious community but an adoption agency;
  • the Equality Act 2010 exception for religious bodies does not apply to the charity, as its purposes do not fall within this exception.
OSCR acknowledged the substantial benefit provided to children, prospective adoptive parents and the public in general, but felt that this was outweighed by the disbenefit (harm) resulting from unlawful discrimination. It also found that the criteria for assessing enquirers unduly restricted access to the charity's benefits.

The charity has not complied with the direction to change its guidance and procedures, and has appealed to the Scottish charities appeal panel. The charity therefore remains on the register of Scottish charities with the direction in place. No action will be taken on the direction pending the outcome of the appeal.

According to the appeals panel website at www.scap.gov.uk/appeal/register.html, the hearing took place on
9-13 September 2013. The Scottish Catholic Observer reported on 1 November that the decision was expected in November, but as of 8 December 2013 it had not been published.

For summaries and articles about cases, do a Google search on key words in the case name or content.




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