Age Discrimination Ban - Legal Update for Golf Clubs. John Hassells NGCAA Legal Advisor

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1 Age Discrimination Ban - Legal Update for Golf Clubs 14 th September 2012 John Hassells NGCAA Legal Advisor 1. Introduction England Golf and the National Golf Clubs Advisory Association has jointly employed the services of Mr John Hassells to produce this note of guidance for golf clubs, on the ban on age discrimination in the provision of goods, services and facilities under the Equality Act 2010 (the Act ). The guidance is intended to help clubs better understand their responsibilities under the age discrimination provisions. The provisions in Part 3 of the Act that relate to services, goods and facilities were brought into force on 1 October However, none of the provisions relating to age are yet in force. The ban will come into force on 1 October At the same time, the government will bring into force specific exceptions from the ban, on which it consulted in These exceptions will be very important for golf clubs. 2. Protected Characteristics The Act sets out the law regarding discrimination, by reference to protected characteristics. The following are protected characteristics: Race Gender Gender reassignment Pregnancy Disability Sexuality Age 3. The under 18s are not covered by the age ban Even when the ban on age discrimination comes into force, persons under the age of 18 will not be able to rely on them (section 28 (1) (a)).

2 4. Service Providers, Goods, Services and Facilities The Act refers to service providers as a person concerned with the provision of a service, goods or facilities to the public or a section of the public, whether or not for payment (section 29(1). A service provider can be an individual, a business or a public body. Services, facilities and goods are not defined in the Act. They are likely to be interpreted widely by the courts. A person is protected both when requesting a service, good or facility and during the course of being provided with a service (section 36). 5. Service Provider - Age Duties The main prohibitions on service providers, in relation to age, are set out in section 29 of the Act, which prohibits all of the following: Direct Discrimination Indirect Discrimination Harassment Victimisation Golf Clubs must be mindful of their obligations, as service providers to members and guests. 6. Prohibited conduct A service provider is prohibited from discriminating against a person with a protected characteristic in the following ways: Not providing a person requiring the service, goods or facilities with the service in question. Not providing the person with a service, goods or facilities of the quality which the service provider usually provides to the public. Not providing the person with the service, goods or facilities in the manner in which, or on the terms on which, the service provider usually provides the service to the public. When providing the service, goods, or facilities to a person, discriminating against or victimising them: o as to the terms on which the service, goods, or facilities are provided; o by terminating the provision of the service, goods or facilities to them; or o by subjecting them to any other detriment. Harassing a person requiring the service, or a person to whom the service provider provides the service, goods or facilities (Section 29 of the Act) 7. Contract terms for goods, facilities or services

3 A service provider cannot exclude or limit the application of the Act by a contractual term (section 142 of the Act). A term of a contract which purports to exclude or limit a provision of the EA 2010 (or its secondary legislation) is unenforceable by the person in whose favour it would operate (section 144 of the Act). This does not apply to settlement agreements or valid compromise agreements. A county court can modify or remove unenforceable terms (section 143 EA 2010). 8. Enforcement Proceedings for discrimination must be brought in the county court (section 114). Proceedings must be brought within six months of the date of the act to which the claim relates. A county court has a discretion to accept proceedings brought outside of the six-month period if in all the circumstances of the case it is "just and equitable" to do so (section 118(1)(b)) The county court may grant any remedy that the High Court could grant in proceedings in tort or on a claim for judicial review (section 119(2)). This includes non-financial remedies such as a declaration. The court may also award damages by way of compensation for injured feelings (section 119(4)). 9. Damages As discrimination is a statutory tort, the tortious measure of damages applies. However, many claims won t involve financial loss. This means claims for discrimination in the provision of goods and services are often limited to claims for injury to feelings as no other financial losses have been caused by the discriminatory acts or omissions complained of. The level of damages for injury to feelings is divided into three "Vento" brackets (updated by Da Bell v National Society for the Prevention of Cruelty to Children [2010] IRLR 19): 750 to 6,000. 6,000 to 18, ,000 to 30,000. Claims involving one-off incidents of discrimination may well fall within the lowest Vento bracket. This may also mean the Claim falls under the small claims court limit, meaning the losing party will not be ordered to pay the winners reasonable legal costs. 10. Codes of practice and guidance The EHRC publishes both statutory and non-statutory guidance on the Act. The statutory guidance is the Code of Practice on Services, Public Functions and Associations.

4 The non-statutory guidance offers advice that is geared towards specific sectors. 11. What does positive action mean? Positive action will not be unlawful unless the action in question is prohibited by another Act (section 158(6)). Positive action requires a reasonable belief by a club that people who share a protected characteristic: Suffer a disadvantage connected to the characteristic. Have needs that are different from the needs of persons who do not share it. That their participation in an activity is disproportionately low. (section 158(1)) A club may then take positive action in order to enable or encourage these persons to overcome that disadvantage, meet those specific needs or participate in that activity. Examples of positive action would include: Providing additional or bespoke services. Providing separate facilities. Providing accelerated access to services. Targeting resources. Providing induction or training opportunities to benefit a particular disadvantaged group. 12. Can a golf club treat people differently on the grounds of age? From 1st October 2012 a private club or association cannot, without sufficient reason, discriminate against club members and guests because of age, unless it is covered by the permitted exceptions. What is an Association, for the purposes of the Equality Act 2010 (and the associated Exemptions Order)? Section 107 of the Equality Act 2010 defines an association as an association of persons that (a) has 25 or more members and (b) has rules (not necessarily formal or written) regulating who can be a member and there is a genuine selection process for members. It does not matter whether an association is incorporated or whether its activities are carried on for profit. Membership means membership of any description. Most golf clubs will therefore meet this definition of an association and the exceptions (permitting discounts and concessions, as detailed below at section 13) will apply to them,. However, if a golf club also offers services to the public, such as pay and play, they will likely do so as service providers.

5 So what about proprietary golf clubs? Proprietary golf clubs will normally meet the definition of an association because they will normally have rules regulating who can be a member and there is a genuine selection process for members. 13. The Exceptions to the Age Discrimination Ban The Exceptions Order (now approved by the House of Commons and to be introduced in October 2012) will introduce two very important exceptions to the ban: Concessions Competitions Clubs and associations, including golf clubs, will still be able to offer concessions to members above/below a certain age or based on 'long service/membership'. Concessions include a discount or form of preferential offer. Clubs will still be allowed to run age-restricted sports competitions, for example, under-21s l competitions and veterans competitions. Concessions based on Length of membership The Exceptions Order confirms that to offer a concession based on length of membership, or a mixture of length of membership and a certain age requirement, will not amount to age discrimination. Clubs can therefore offer discounts for those who have been members for a number of years regardless of their age, without it amounting to age discrimination. Clubs are also free to decide the thresholds (i.e. the particular age requirement, the length of membership or a mixture of both criteria). The draft Exceptions Order had initially included provisions meaning age related concessions (offered to a particular age group) would be unlawful age discrimination if they prevented persons of other age groups from using the services. However, the final version of the Exceptions Order dropped these provisions. This means, clubs will not need to show their decisions are reasonable (and/or justified) in relation to concessions based on age and/or length of membership.

6 Importantly, concessions based on length of service may potentially be discriminatory on the grounds of other protected characteristics, for example gender, depending on the circumstances. Article 8 of the Exceptions Order: Associations 8. In Schedule 16 (Associations: exceptions) insert after paragraph 1 Age 1A. (1) An association does not contravene section 101(1) or (2), so far as relating to age discrimination, by giving a concession on admission to membership for (a) persons of a particular age group, or (b) persons who have been members of the association for more than a number of years specified by the association for this purpose. (2) An association does not contravene section 101(2) or (3), so far as relating to age discrimination, by giving a concession on access to a benefit, facility or service for (a) members of a particular age group, or (b) persons who have been members of the association for more than a number of years specified by the association for this purpose. (3) An association does not contravene section 102(1), so far as relating to age discrimination, by giving a concession on invitations of persons of a particular age group as guests. (4) An association does not contravene section 102(2), so far as relating to age discrimination, by giving a concession on access to a benefit, facility or service for guests of a particular age group. What if our club does not meet the definition of a private club or association? A specific exemption (permitting concessions) is still available to service providers, which is similar to the concessions available to clubs : Part 7 of Schedule 3 of the Exceptions Order inserts a new section 30A into the Equality Act. Section 30A states: Concessions -

7 (1) A person does not contravene section 29, so far as relating to age discrimination, by giving a concession in respect of a service to persons of a particular age group. (2) The reference to a concession in respect of a service is a reference to a benefit, right or privilege having the effect that the manner in which the service is provided is, or the terms on which it is provided are, more favourable than the manner in which, or the terms on which, it is usually provided to the public (or, where it is provided to a section of the public, that section).. Service providers will therefore still be allowed to offer age based concessions for services generally available to all age groups. The Government s guidance notes provide some helpful examples and familiar questions and answers, which we set out below. Clubs for people of particular age groups or ages will continue to be able to operate. For example, clubs for 'under 20s' and 'pensioners clubs'. Clubs can use age to determine eligibility for concessions, discounts or the like. For example, a golf club will be able to offer concessionary pricing based on a person s age or length of membership and free access to facilities at certain times to certain age groups. There is no restriction on the nature of the concession. A private club or association will be able to offer discounts on the price of membership, admission, goods, tickets etc., according to age, if they wish. Private clubs and associations are free to set their own age limits for concessions. Private clubs or associations can offer age-specific services which are beneficial or are justifiable. Services are often targeted in this way to reach those people most likely to need them. Private clubs and associations to do with sport, such as golf, tennis, bowls and 'intellectual' games (such as chess, bridge), can continue to operate age limits and age bands to secure fair competition or the safety of competitors or to comply with rules determined at a national or international level or by sports governing bodies. Can my club offer concessions on membership and services based on age and length of service / length of membership? Yes. Clubs can offer concessions on membership to persons of a particular age or who have been members of the club or association for a certain number of years, according to the rules of the club or association. However, clubs must remember that offering different concessions on the

8 grounds of other protected characteristics, such as gender, will be unlawful unless capable of objective justification. My golf club offers membership categories that entail the same playing rights but at different price levels depending on the member s age, will this still be lawful? Yes. Clubs can lawfully offer services at different prices depending on a person s age. For example, a private golf club can charge an annual membership fee of 500 to those under 65, but a reduced membership fee for those 65 and over of 250, and a fee of 100 for those aged 80 or more. Can we still hold a veterans golf tournament? Yes. Age-restricted sporting competitions such as veterans tennis competitions can still take place. Can I still exclude a 16 year old from taking part in an adult golf competition? Yes, but it is perfectly open to the club to allow 16 year-olds to compete if it wishes. The age discrimination ban only protects those aged 18 and above. It would be up to the discretion. 14. The Justification Defence Age-related decisions Where a club treats (by its rules, constitution, policies, procedures and practices) a member or guest differently because of age, and the treatment does not fall under one of the exceptions, mentioned above (concessions and competitions), it will still be able to escape an age discrimination claim (i.e. it will be lawful) if the club is able to show it was 'objectively justified'. The phrase objectively justified is short hand for a proportionate means of achieving a legitimate aim. 15. Harassment Harassment because of age is a form of age discrimination, and it can never be justified. 16. What next for your club? To minimise the risks of age discrimination claims from service users, the following should be considered. Draw up a policy on equality of access to and enjoyment of services by potential service users or members from all age groups in society. Communicate the policy to all staff. Train all staff, including those not providing a direct service to the public, to understand the policy, the meaning of equality in this context and their legal obligations. Monitor the implementation and effectiveness of the policy. Address acts of discrimination by staff as part of disciplinary rules and procedures.

9 Ensure that performance management systems address equality and non-discrimination. Maintain an easy to use, well-publicised complaints procedure. Review practices to ensure that they do not unjustifiably disadvantage particular age groups. For further detail you may wish to read: For more information, contact the NGCAA Tel:

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