PWW is a specialist provider of legal advice to faith based charities and organisations. Our clients include mainstream and non-mainstream Christian organisations and Islamic organisations.

Often religious organisations need to impose criteria for membership or for access to their services to preserve the integrity of their faith. This article looks at the various ways religious charities can do so legally under the Equality Act 2010.

General charity exception

The recent Supreme Court case of R v Hackney London Borough Council and Agudas Israel Housing Association (AIHA), provides a practical example of how religious charities can lawfully restrict their benefits to people that share the same religious beliefs.

In that case, the policy of the AIHA to offer its social housing to members of the Orthodox Jewish community was held to be lawful. The Supreme Court accepted that the general charity exception in section 193 of the Equality Act 2010 applied (mentioned below) and, in accordance with that section, the policy of AIHA was proportionate.

The Supreme Court based its decision on the following reasons:

  • there was a surplus demand for social housing in the Orthodox Jewish community;
  • AIHA held only 1% of the social housing stock in Hackney;
  • the Orthodox Jewish community faced particular disadvantages – including poverty and low home ownership, anti-Semitism, and specific cultural needs (large families and close communities).

What is the general charity exemption in s.193 of the Equality Act 2010?

Religious charities can restrict the provision of their services to beneficiaries that share the same religious belief if they meet the exception under s.193 in the Equality Act 2010. This requires the restriction to be in pursuance of its governing document (i.e. set out in its charitable purpose) and be either:

  • a proportionate means of achieving a legitimate aim, or
  • prevents or compensates for a disadvantage

In addition to its use in the AIHA case, this section could also be used, for example, by an Islamic charity to provide financial support to Muslims to attend an educational institution in which Muslims are underrepresented.

What happens if religious belief conflicts with another protected right in the Equality Act?

Religious charities may find relief in Schedule 23 to the Equality Act 2010, which allows some religious charities (but not their trading companies) to impose restrictions on their membership, participation in activities, the use of facilities or services they provide, or the use of their premises. The restriction imposed must relate to either a person’s religion or their sexual orientation.

For example, a Catholic Church would be acting lawfully by refusing to hire its hall to a group promoting same-sex marriage.

Note that this part of the Act does not apply to the provision of services the religious charity is contracted to provide on behalf of a public authority. This is why AIHA was not able to rely upon it.

Can we make belief a condition of membership? (s.193 (5) and Part 7)

Religious Charities may make religion or belief a condition of membership and restrict benefits of membership to those sharing the belief.

Can we employ people who share our beliefs? (Schedule 9 – para 3)

Religious charities enjoy various provisions which enable them to select employees by reference to their religious beliefs (where there is an ‘occupational requirement’) and impose other restrictions relating to sex, sexual orientation or marriage (among others) where this is necessary to avoid conflicting with strongly held religious beliefs.

If you have any questions about how the law affects the arrangements your religious organisation has in place, please contact Andrew Price here to arrange a call.

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