Michael Shaw: An introduction to the Equality Act

The Equality Act applies to all golf clubs in England, Scotland and Wales.

It is divided into 15 parts. Each part is sub-divided into various chapters and each chapter is broken down into various sections. The act concludes with 28 schedules.

It is by any standards a massive piece of legislation.

The main provision of the act directly affecting a private members’ golf club is part seven, which is specifically designed to have the application of the provisions of the legislation applied to private members’ clubs of all descriptions.

So far as issues relating to membership and the management of the affairs of the golf club outside the areas of employment law, private members’ clubs are also affected by:

Part 2 – Protected Characteristics.

Part 4 – Office Holders.

Part 11 chapter 2 – Positive Action.

Part 13 – Disability Issues.

Part 14 – General Exceptions particularly section 193 regarding sport.

The act introduces a new concept known as ‘The Protected Characteristics’ and makes it unlawful for any organisation, particularly a private members’ club, to discriminate against any individual possessing one of those protected characteristics.

These are as follows:

i. Age

ii. Disability

iii. Gender reassignment

iv. Marriage and Civil Partnership

v. Race

vi. Religion or belief

vii. Sex

viii. Sexual orientation.

The act gives the court power to award damages and costs and to grant injunctive relief, that is to say that the court may order a club either to do or not to do something in addition to requiring it to pay damages and costs.

It should also be noted that an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).

A private members’ golf club must not discriminate against a person in the arrangements that it makes for deciding who to admit to membership or the terms of which it is prepared to admit another to membership or by not accepting an application for membership.

Similarly an association must not discriminate against a member, visitor or guest in the way that it affords access by a person having one of the protected characteristics or by affording the access to a benefit, facility or service or depriving somebody of membership or varying the terms of membership or subjecting that individual to any other detriment.

These provisions also apply to an associate member and to the guests of a member or guest of an associate member. Thus if we take admission into membership as a starting point for an example of how the act will apply, the provisions of the legislation are reasonably straightforward in the sense that membership applications cannot be refused on the grounds of one of the protected characteristics.

As in all legislation ‘the devil is always in the detail’. Whilst on the face of it the act appears to prohibit, for example, ladies’ and seniors’ discounts, the provisions relating to ‘positive action’ and providing justification where the discrimination occurs in pursuit of a legitimate aim may provide scope for these to continue at least in part, or for a limited period should any club wish to take advantage of these provisions.

Similarly, whilst sport (in the sense of playing the game not in the terms that membership of a sporting club is offered) appears to be exempt from its provisions the act does impose some conditions before the exemption can be applied. A person does not contravene this act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity. A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

However, so far as amateur golf is concerned, these provisions have to be viewed in conjunction with the CONGU handicapping rules, particularly Appendix ‘O’ to see whether, if a club so wishes, it can take advantage of this apparent exemption.

Continuing with the theme of equality and to give the reader some indication of how courts link damages and injunctive relief, I recently read a report of the (new) Supreme Court relating to a disability discrimination case. The court rejected an appeal by the Royal Bank of Scotland against the imposition of a building alteration injunction requiring the bank to pay damages and install a platform lift at an estimated cost of £200,000 following a claim brought against the bank when a disabled teenager was unable to gain access to the bank’s main building in Sheffield city centre.

Wall LJ said: “There were, on the facts, reasonable steps the bank could have taken to make disabled access possible. The bank did not take those steps, giving as its reasons, not the disproportionate cost of carrying out the work, but simply the fact that it would lose the use of an interview room as a result that it was unreasonably difficult for the claimant to use the services provided by the bank.” (The claimant had ended up being engaged in private conversation about the opening of a savings account in the street in full public view).

A salutary reminder of the action courts can take where, for example, a club does not provide disabled toilets or fails adequately or at all to comply with the requirements of the disability legislation both on and off the course.

Age discrimination

The legislation relating to age discrimination will not come into effect until April 2012. From 2012 the government will make it unlawful for clubs to discriminate against their members, visitors, guests or associate members because of their age.

It is now appreciated by government that ‘some clubs’ do offer positive concessions on the basis of a person’s age, such as reduced membership rates for the over 65s or cheaper meals on week days for pensioners.

Thus the government now accepts that these age-based concessions are beneficial as they allow older people to participate more fully in society and the economy, and consequently this increases their sense of well-being.

Thus a further consultation will take place on whether to introduce an ‘exception’ in the Equality Act to allow clubs and service providers to continue to offer beneficial age-based concessions. This will be introduced at the same time as the ban on age discrimination is implemented in 2012.

There will also be a separate exception which allows people to be categorised according to their age for sports’ competitions, for example under or over 18s, or veteran’s competitions.

Women’s vote

Some things the legislation will change irrespective of the members’ wishes, for example, if rules provide that women do not have the vote, then at the first general meeting of the club following the implementation of the legislation, notices of meetings will have to be sent out to those members who are women and they will be entitled to attend the meeting and vote, and this will include the right to vote by proxy if the club is an incorporated association. Similarly if rules or practices or procedures restrict access to the course by women at the weekend, these will have to be looked at and managed accordingly.

However, some changes will require the members to express a preference, for example, changes to practices and procedures surrounding the non discriminatory nomination and selection of officials. This should involve consultation with the members in open meeting and then the matter should formally be put to the members at a general meeting of the club allowing them to express their preference by voting in the usual way.

In the event that the members show a reluctance to vote on required changes, clubs should be mindful of the fact that the legislation can force change upon them and whilst they may have a choice in the manner of the change they will have no choice to say whether a change should or should not take place. Pretty brutal one may think, but that is the effect of the legislation.

Buggies

One area of the new legislation which needs to be properly considered is the provision of buggies for the disabled and if, and only if, there is such a requirement, can charges be made or not for its use by a disabled golfer whether he / she be a member, associate member, visitor or guest?

It is vital that before any decisions are taken in this respect clubs receive authoritative advice which encompasses not simply the narrow point but also addresses issues such as health and safety, damage impact, booking procedures (if needed), competition requirements to name but a few.

A circular from a commercial company has been circulated to some clubs in connection with promotional material relating to the sale of their product, suggesting:

“There are several facets to this, the main one being that you must make available a motorised golf buggy for the use of any disabled person wishing to play your course. There are no exemptions and this affects every golf club in the United Kingdom, regardless of the landscape of your course and any current buggy policy you may have.”

Sexual orientation

The act prevents and makes unlawful discrimination on the grounds of certain protected characteristics, one of which includes marriage and civil partnership and sexual orientation. In a recent case heard in the Bristol County Court, a gay couple married under the provisions of the Civil Partnership Act and brought under the provisions of the Equality Act (Sexual Orientation) Regulations 2007, won their claim against the owners of a private hotel in Cornwall on the grounds that they were not allowed to share a double room because they were a gay couple.

The provisions of the Equality Act 2010 basically would be applied to exactly the same circumstances if a similar case was brought under its provisions and therefore it is a useful exercise to see how the law was and would be applied today if one should come before the courts. It would not be unreasonable to assume that in today’s climate the measure of damages would be approximate but taking note of the fact that under the terms of the new legislation the amount of damages can be increased to take into account injured feelings.

It was beyond dispute that the hotel owners are devout Christians and do not allow couples gay or heterosexual, who are not married to share double rooms because they do not believe in sex before marriage.

They maintained that their refusal to accommodate civil partners in a double room was not to do with sexual orientation but ‘everything to do with sex’. The judge ruled that the hotel had directly discriminated against the couple on the ground of their sexual orientation and awarded them compensation of £1,800 each. He said the right of the hotel owners to manifest their religion is not absolute and ‘can be limited to protect the rights and freedoms of the claimants’. In other words, the right of a person to live out their religious beliefs does not give hotel owners the right to turn away a couple simply because they are gay and in opening a hotel the proprietors’ home became a commercial enterprise to which the wider standards of the community applied, rather than the ones privately held.

Now unless a golf club operates a Dormy House or something similar, there may be those readers of this magazine who wonder how this landmark ruling affects things within the golf club environment. However, after a little reflection it should become clear.

Private members’ clubs

How often in recent months have we heard: ‘We are a private members’ club – surely this law does not apply to us’. Well, yes it does! Part seven of the Equality Act 2010 extends the provisions of the legislation to clubs and associations with 25 or more members. Similarly, we have heard: ‘Because we are a private members’ club, our members may vote on whether the Act or only some of its provisions will apply’. Well, this is not the case, because part seven extends to a private members’ club, the members have very little say in the matter, it is the wider standards as outlined in the Act which applies not (often) the somewhat narrower or perceived narrower standards expressed often in the rules, customs and practices within a private members’ club.

Several months (or thereabouts) have elapsed since golf clubs have had notice of both the extent and intent of the legislation. Plenty of time some would argue to have taken advice, consulted with members and held meetings including special meetings to consider and implement rule changes (in those limited circumstances where choices are available). Indeed the very strict position is that these or at least the final position relating to equality matters should have been in place on or before October 1, 2010, when the act came into force.

At the very least, all clubs to which the act applies should by now have carried out a general review and bear in mind that the act creates such a change in the workings of associations that it is not sufficient for clubs to simply pay lip service – golf clubs are a specific target for this legislation.

Clubs will need to carry out an exercise to review processes and operations to consider the level of compliance. They should identify areas and processes for change where necessary as they are under a duty to make reasonable adjustments.

It is suggested that such management or operating committee as clubs may use to run their affairs should consider the Act and its implications, and that they should record their reasonable conclusions. They must continue to track progress to completion, if for no other reason than this would be useful to defend an action for discrimination or to offer in mitigation of the consequence of a finding of discrimination. Certainly the absence of any record of effort will be telling to any court in the event of a challenge being made.

Advise members of the changes

1. If clubs advise their members of their equal opportunity objectives then this may aid acceptance of the change and reduce the prospects of arguments on the tees when members start to assert their rights. Accordingly, it would be prudent to communicate the impact of the act upon the operations of the club to its members. A ‘consultation’ meeting for all members would seem a good idea. Alternatively, this might be achieved either in a rider to the regular news updates or by means of a notice to members on the adjustments being made to ensure compliance. When relevant, this information should be passed to guests.

2. The equal opportunities objectives should provide a complaints’ procedure. This may be substantially the same as any existing mechanism but that mechanism should be reviewed to confirm that it is appropriate for concerns of this nature.

Appointing officers

3. As noted above, the procedures for the management of golf clubs have evolved over time but the accepted norms will be challenged and subject to scrutiny in court if they are not updated to take account of the act. Of particular concern would be the way in which clubs are organised and managed and the processes by which ‘officers’ of the club are selected.

4. The procedures as written (and in practice) are significantly different from club to club so it will be necessary for all clubs to consider for themselves how their constitutions fare in comparison to the obligation not to discriminate. It is considered that the greatest risk is the prospect that there may be indirect discrimination against women. However, other forms of direct discrimination might also need to be considered to determine how they can be eradicated.

5. The act clearly entitles a member with a protected characteristic to have exactly the same rights as any other member in terms of voting and election to the club’s committee. Traditionally, it may be said that such committees in private members’ clubs are made up of predominantly male members. This is a practice that should be addressed. Positive steps should be taken to encourage participation by all members from the nomination stage through to the AGM.

Captaincy and seniority (status) of captains

6. The variety of mechanisms for the appointment of a club captain was discussed in conference. Normally, roles of this kind are unremunerated. However, this does not mean that the act will not apply. The trend was observed that many clubs have two captains: one for the ladies, section and one for the gentlemen’s section but that in many cases the men’s captain assumes the role of ‘club captain’. It was also noted that some captains are voted on and some are nominated by past captains (male only).

7. Whilst it would remain acceptable for clubs to have the ladies vote on a ladies’ captain and the gentlemen vote on a gentlemen’s captain, it is no longer acceptable for the gentlemen’s captain automatically to assume the role of the ‘club captain’.

If there are to be two captains, one of each sex, and there is to be a distinction or precedence as between the two captaincies, there will be difficulty. As with all issues of membership rights and voting, clubs will need to review their constitutions to confirm compliance or to work to put in place a new system that does comply with the law. It may be necessary therefore to create a new role of ‘Club Captain’ or ‘President’.

One point which raises much concern is the content of a club’s website and other web-based marketing programs. Clubs have been actively encouraged in recent years to use the web as an effective marketing tool and there have been all sorts of initiatives suggested to help clubs to generate income through the web.

A casual trawl on clubs’ sites often reveals differentials in fees for men and women, certainly at subscription and entrance fee level but occasionally in respect of green fees payable. Even 10 months after the passing to the legislation a search of the web reveals that women have restricted playing times and areas of the club set aside and designated as ‘men’s bar’ and so forth including proclaiming ‘no buggies allowed’, which suggests non-compliance with the disability provisions of the legislation.

Even though the web is a wonderful marketing tool when properly used, it may have its limitations and certainly creates dangers for the club if it is not managed appropriately and kept up to date in line with current legislation. Failure to update a website to accord with the provisions of the Equality Act 2010 is not merely foolish, it simply gives notice to the world ‘Come and Sue Us’ and adds to the already existing risk factor.

Michael Shaw is head of the National Golf Clubs’ Advisory Association. In 2010 he visited numerous golf clubs giving presentations on the Equality Act