‘Associations’

The rules on “associations” in Part 7 Equality Act 2010 cover private members clubs and other associations where there is a selection process for membership.

Summary

Where an association operates a selection process to admit members, it has been held that the normal anti-discrimination rules in EqA Part 3 on services to the public do not apply. The association is “private” rather than “public”, eg a private members club.

Part 7 of the Equality Act 2010 fills the gap. It applies anti-discrimination rules to an association which uses a selection process to admit members – provided the association has at least 25 members and has rules (written or unwritten) which regulate admission to membership.

A major exception is that Part 7 allows an association to be limited to people with a particular protected characteristic (other than race), eg men only or women only (EqA Sch 16 para 1). There are disputes on how far this goes: Private members club frequented by top judges and QCs faces legal action over men-only policy (legalcheek.com), 2020.

Where there is no selection process for membership, the Part 3 rules on services to the public may apply.

Part 7 includes particular rules on political parties.

Where do the Part 7 rules apply?

Need for process of selecting members (and rules)

House of Lords decisions in the 1970s held that the then race discrimination legislation did not apply to clubs where admission to membership involves some genuine selection on personal grounds. A common example is where a committee votes whether to accept someone as a member (at least if that is more than a formality). The House of Lords held that services and facilities provided by such a club to its members are not provided “to the public or a section of the public”. Accordingly the general anti-discrimination rules on services to the public did not (and still do not) apply.

To fill this gap, new rules on private members clubs were introduced for some types of discrimination, including disability. These have now become the rules on “associations” in Part 7 Equality Act 2010.

Under s.107(2) EqA, an association is defined as an association of persons –

• which has at least 25 members, and
• admission to membership of which is regulated by the association’s rules and involves a process of selection.

It does not matter whether an association is incorporated, or whether its activities are carried on for profit (s.107(4) EqA). The “rules” need not be written (Services Code, para 12.15).

Part 7 of the Equality Act 2010 is a residual category for cases not covered elsewhere. So under s.100(2) EqA, Part 7 does not apply if the discrimination etc is – or would but for an express exception be – prohibited by Part 3 (services and public functions), Part 4 (premises), Part 5 (work) or Part 6 (education).

The Services Code para 12.9 gives examples of what may be an association within Part 7.

Where a club or other association does not have a selection process for new members (and so is not an “association” as defined in Part 7), it should very often be subject to the Part 3 Equality Act rules on services to the public. It may be unclear whether a particular situation is within Part 3 or Part 7, in which case one would probably plead both, as alternatives.

Example: A public speaking club gives a member who stammers fewer opportunities to give speeches to the group, because of his stammer. This may well be unlawful discrimination, either under Part 7 Equality Act as an “association” if the club has a selection process for membership (and rules on admission to membership), or under the Part 3 rules on services to the public if there is no selection process.
Note: This example is purely fictitious. The feedback I have heard is that people who stammer are treated well in public speaking groups, and find the groups beneficial: see ‘Giving presentations’ on Stammering at work (stamma.org).

From the statutory Code of Practice:

“12.6 An organisation that merely requires members of the public to pay a fee to join it without any form of selection, such as a nightclub or a gym, is not an association under the Act. It does not matter whether it describes itself as a ‘club’ or refers to customers as ‘members’. Such bodies are involved in the provision of services to the public or a section of the public [within Part 3 of the Act]….

12.7 There are also organisations which people join in order to support the objects of the organisation, such as a football team supporters’ club or a campaigning organisation. If there is no selection process and membership is open to anyone on payment of a fee then such organisations would also not come within the Act’s definition of an association.

12.8 A ‘club’ run by a group of friends without any formal structure, such as a book club or a women’s group or a walking group, is not an association under the Act.”

Para 12.6-12.8 of statutory Services Code. My comment: Depending on the facts (a) presumably an organisation within para 12.7 providing services or facilities to members will be subject to Part 3 of the Equality Act as providing services or facilities to the public (or to a section of the public); and (b) a club as described in para 12.8 may well not be providing services to the public, and so be outside the Equality Act.

An association within Part 7 may also be covered by other parts of the Equality Act in respect of some activities:

“A golf club would be a service provider if it opened its golf course, cafe and shop to members of the public on certain days of the week. It would be treated as an employer if it discriminated against one of its employees. It would be a manager or disposer of premises if it let out commercial premises or residential premises above the club premises.”
Para 12.10 Services Code

Political parties

Ss.104-106 EqA (in Part 7) applies to an association which is a registered political party. Ss.104-5 allow selection arrangements aimed at increasing representation of disadvantaged groups on elected bodies, provided the arrangements meet certain requirements. Up to 2030 these can include all-women shortlists. S.106 provides for publication of diversity information about candidates, but is not currently in force.

Ss.104-106 are stated to apply only if the registered political party is an “association”. This is rather odd. On the face of it, a political party which does not have a selection process for membership is not an “association” and not within ss.104-106. Guidance on the Equality Act does rather seem to envisage though that all registered political parties will be “associations”.

Links on political parties:

• The Equality Act 2010: a guide for political parties (EHRC) – February 2018, non-statutory guidance from the Equality and Human Rights Commission (EHRC);
• Access to Elected Office for Disabled People Strategy: Compliance with the Equality Act 2010 Guidance for political parties (gov.uk), April 2012;
• Stammering in Parliament (archive of stammering.org) – in June 2009 BSA Vice-Chair Leys Geddes gave evidence to the Speaker’s Conference, looking into under-representation of various groups in Parliament;
• Statutory Services Code, from para 12.54.

Trade and professional organisations

The rules on associations do not cover trade and professional organisations, which fall within the employment provisions. See Professional/trade organisations and unions.

Volunteers

A volunteer may be protected from discrimination as a member of an association. See Volunteers: Volunteer as member of an ‘association’.

Who has rights under Part 7?

Broadly speaking, the following have rights in respect of associations:

• people seeking to become members;
• members;
• associates (people who under the rules have some or all of the rights as a member as a result of being a member of another association); and
• guests, and people seeking to become guests.

What rights?

It is unlawful to discriminate in various respects, for example – very broadly – access to membership, access to benefits, services or facilities, or subjecting a member (or associate or guest) to any other detriment.

“The leader of a boys’ club on a camping trip jokingly refers to one boy with severe facial burns as ‘scarface’ and the other boys laugh. The disabled boy finds this insulting and humiliating and asks to go home early. Because the comments are offensive and upset the boy, this is likely to be unlawful harassment related to disability.
Example in para 12.31 of Services Code

Unlawful discrimination includes failure to make a reasonable adjustment. The rules on reasonable adjustments have similarities to those on Services to the public. For example, the reasonable adjustment duty:

• is anticipatory (under EqA Sch15 para 2(2)); and
• does not require an association to take any steps that would fundamentally alter the nature of the association or the nature of the benefit, facility or service concerned (EqA Sch15 para 2(7)).

There are some exceptions in EqA Sch 16. In particular, an association is normally allowed to restrict membership to those sharing a protected characteristic (above).

For more detail on rights against associations, see the links below under More on associations.

Disputes

See Complaints and going to court: services.

More on associations

• Chapter 12 of the statutory Services Code of Practice – the Code is not binding but often should be taken into account by courts.
• What equality law means for your association, club or society (EHRC) – April 2014, non-statutory guidance from the Equality and Human Rights Commission (EHRC).
• Part 7 Equality Act 2010 (legislation.gov.uk).