Legal advice in golf clubs: Discrimination

Seamus Rotherick
By Seamus Rotherick July 27, 2021 13:00

In a feature providing legal advice about equality, diversity and inclusion in golf clubs, the National Golf Clubs’ Advisory Association (NGCAA) details the legal definition of discrimination.

Golf clubs should be free from discrimination, whether that is in relation to staff, job applicants, members, visitors, guests, contractors, parents, coaches, volunteers, officials and all others.

There should be an inclusive environment and golf clubs should ensure that all people are treated equally and have equal opportunities within the club irrespective of their background or protected characteristics (that is sex, age, disability, sexual orientation, race, religion or belief, marriage or civil partnership, gender reassignment and pregnancy or maternity).

In the context of discrimination, disability has a wide legal definition and covers any person who has “a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. Where the club is aware or suspects that a person may satisfy this definition, careful consideration needs to be taken in relation to all arrangements with and decisions made regarding that person (see below for types of discrimination and specifically the duty to make reasonable adjustments). If the club is unsure if a person satisfies this definition, it may be necessary to seek a medical opinion. If in any doubt, please take advice from the NGCAA.

Equality should permeate through all club policies, procedures, plans, competitions, events, rules, services and provision of amenities. Clubs should provide appropriate training and support to all staff, contractors, officials and volunteers to raise awareness of both the collective and individual responsibilities. Members and players should also be made aware of a club’s equality policy and their responsibilities under it. Clubs should have a complaints’ procedure for both staff and members concerning discrimination and breaches of any equality policies.

Clubs should be mindful of discrimination at all times and contemplate how potential barriers or discriminatory arrangements can be avoided or removed. It is advisable for clubs to monitor diversity in all areas of the business to best understand the diversity that exists and the requirements and needs of individuals. Trends can be mapped over time, highlighting priority areas and progress.

It may sometimes be necessary to take special measures or positive action in favour of any group which is under-represented in participation or club membership for example. Any positive action should be carried out in accordance with the law. If a club is considering positive action, it would be sensible to take advice from the NGCAA to ensure that it is handled correctly.

Clubs should monitor and review their compliance with equality laws and guidance on a regular basis, making adjustments and plans as appropriate.

What is discrimination?

Discrimination can take many forms including by actions or omissions, by verbal, written or physical conduct. The law recognises a number of specific categories of discrimination as follows:

  1. Direct discrimination is where someone is treated less favourably than another person because of a protected characteristic. For example, if female employees were subjected to a more onerous dress or appearance code than men purely because of their gender. The less favourable treatment must be because of the protected characteristic. This requires the court or tribunal to consider the reason why the person was treated less favourably: what was the conscious or subconscious reason for the treatment? Direct discrimination can take the form of discrimination by association where direct discrimination is against someone because they are associated with another person who possesses a protected characteristic or discrimination by perception where direct discrimination is against someone because the other person thinks they possess a particular protected characteristic.
  2. Indirect discrimination occurs where the effect of certain provisions, criteria or practices (PCPs) imposed by an organisation has an adverse impact on a certain group sharing a protected characteristic, and which cannot be justified. Indirect discrimination generally occurs when a PCP, which is applied equally to everyone, puts the complainant and those whom they share the protected characteristic with at a particular disadvantage. For example, having a policy that all staff must work certain days without exception may discriminate against those of particular religions if required to work on days of religious significance to them. If an organisation can show that its actions were a proportionate means of achieving a legitimate aim, it may avoid a finding of indirect discrimination (known as ‘objective justification’). If clubs have PCPs which may be potentially indirectly discriminatory, consideration should be given as to the justification, taking into account the real business needs of the club.
  3. Harassment includes sexual harassment and other unwanted conduct related to a protected characteristic which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual. In determining whether conduct can reasonably be considered as having such effect, the perception of the complainant will be taken into account. People can complain of behaviour they find offensive even if it is not directed at them.
  4. Victimisation is where someone is treated unfavourably because they are known, or suspected to have done, or intend to do, one of certain protected acts, such as bringing discrimination proceedings, making related allegations or giving evidence in relation such things.
  5. In relation to the protected characteristic of disability, unfavourable treatment which is because of something arising in consequence of someone’s disability (such as the inability to carry out certain tasks) is also unlawful unless it can be appropriately justified. For example, dismissing an employee for being slow to carry out tasks where that is caused by a condition amounting to a disability. Additionally, there is a duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage. The duty can arise where a disabled person is placed at a substantial disadvantage by an organisation’s provision, criterion or practice, a physical feature of the premises or a failure to provide an auxiliary aid. An example of a failure to make a reasonable adjustment could be refusing to make adjustments to a disabled person’s duties or working hours to accommodate their condition.

For further advice on discrimination or any other legal matters affecting your golf club, please contact Alistair Smith on 01886812943 or office@ngcaa.co.uk

 

Seamus Rotherick
By Seamus Rotherick July 27, 2021 13:00
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