Discrimination in sport

The push to remove barriers to participation and reduce discrimination in the sporting world is gathering pace. It's important for all organisations, whatever their size, to understand and apply the legal framework around equality and discrimination. 

The key legislation for discrimination is the Equality Act 2010. At its core, the Act seeks to ensure that an individual is not treated unfairly on the basis of who they are.

The Act applies to employers, prospective employers and individuals. It similarly applies to any business that provides goods, facilities or services to members of the public. It will, therefore, apply to any sports club, gym or sporting venue. Equality law will also apply to any club that under the law is an “association”. This is any club or group which has more than 25 members and has rules to control how someone becomes a member (e.g. where you must be nominated to join).

If any of the above fails in its obligations under the Act, an individual may bring a claim for discrimination.

What is Discrimination?

Under the Equality Act, there are nine protected characteristics. These are:

• Age
• Pregnancy and Maternity
• Disability
• Gender reassignment
• Sex
• Religion or belief
• Race
• Sexual orientation, and
• Marriage or civil partnership.

Whilst most of us will have an idea about what constitutes discrimination, the answer to this question is not as simple as it might seem. Some of the most common forms of discrimination are:

Direct Discrimination

This means that an individual is treated differently or put at a disadvantage due to their protected characteristic. It can include those treated differently due to a perception of a protected characteristic or an association with another person with that characteristic (e.g. refusing membership of a club due to disability). Discrimination of this nature can never be justified.

Indirect Discrimination (except where objectively justifiable)

Someone is indirectly discriminated against if a way of working, policy or procedure that applies to everyone equally puts them at a disadvantage due to their protected characteristic (e.g. a no dogs policy preventing a blind person accessing your club premises). If a policy that is considered indirectly discriminatory can be explained as a proportionate means of achieving a legitimate aim, it can be justified and will not be considered to be discriminatory (e.g. if someone is unable to wear necessary safety equipment due to a protected characteristic).

Harassment

Harassment relates to unwanted behaviour from others relating to a protected characteristic. In cases of harassment, the person who is discriminated against may bring a claim against both the individual perpetrator and their employer. 

Victimisation

Where a person has previously complained of discrimination and is later placed at a disadvantage or treated differently due to this. 

Failure to make reasonable adjustments 

There is a positive responsibility on service providers and associations to accommodate people with a disability by making reasonable adjustments e.g. ensuring that you have a ramp to facilitate access to premises.

Exceptions

An association may restrict its membership to people who share a protected characteristic (e.g. a men-only club or society for people of a particular disability). It is important to note that this exception does not apply to service providers other than where it is objectively justified (e.g. offering female-only swimming sessions).

There are also exceptions when it comes to sports specifically. Under s195 of the Act, in certain circumstances e.g. where it is necessary for fair competition or safety, discrimination on grounds of sex, gender reassignment and/or age may be permitted. 

This means that it is not considered discriminatory to separate men and women or people of different ages in competition. It is important to note that transsexual people should be treated as belonging to the sex in which they present unless there is evidence it will cause an unfair disadvantage.

In addition, the law allows for selection on the basis of nationality, region or place of birth in competitions where the competitor or team is representing that nationality or region.

What does this mean for you?

Improving participation and ensuring equality are not contentious aims and many clubs and societies will already have plans and policies in place to help them to avoid discrimination. Whether or not this is the case, there are some simple, practical steps that can be taken to help avoid the risks of a claim or deal with it effectively if and when faced with one. 

Organisations should ensure that an effective equal opportunities policy is in place that volunteers and employees alike are familiar with. It may also be necessary to review policies, giving thought to whether any of them disproportionately impact on those with protected characteristics.

It is also important to provide training to staff and volunteers so that they understand the principles of equality, are able to recognise instances of discrimination and respond appropriately to allegations.

Equality means treating people fairly, not identically. If it is possible to make reasonable adjustments to accommodate individual needs, efforts should be made to do so. A common-sense approach to considering what is reasonable should be taken, taking into account the nature of the club or business and the costs of adjustments.

If someone reports discrimination, it needs to be taken seriously. Organisations should ensure that any allegation is dealt with objectively and that an open dialogue is maintained. It would be sensible to notify your insurers at an early stage and consider seeking legal advice sooner rather than later to help you manage the risk.