Genuine occupational requirements
It may be lawful for you as an employer to treat people differently when recruiting. In very limited circumstances, if you can show that someone with a particular protected characteristic (on grounds of age, disability, gender reassignment, marriage and civil partnership, race, religion/belief, sex or sexual orientation) is central to a particular job, then you can insist that only someone who has that particular protected characteristic is suitable for the job. This would be a genuine ‘occupational requirement’ (GOR). There is no definitive list of situations where a GOR will exist. It is therefore always best to take legal advice before advertising the job if you believe that there is a GOR.
Introduction
If a discrimination claim is brought, the burden of proof is on the employer to prove there is a GOR. This will be strictly construed by a tribunal as it derogates from the usual principle of non-discrimination. In the case of organised religion GORs, the burden of proof is on the employer to show that they are a religious organisation.
You must decide whether a GOR exists before advertising the job. All roles in an organisation must be considered separately; if there is a GOR relating to one role, it will not necessarily apply to all roles within the organisation.
GORs should be reviewed each time the job becomes vacant, as circumstances may change. If only a few tasks require that the employee have a particular characteristic, you should consider whether duties could be reallocated so to other employees who do meet the requirement.
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Age
The Equality Act 2010, Part 1, Schedule 9 provides that direct discrimination on the basis of age is lawful where a characteristic relating to age is a genuine occupational requirement and it is proportionate to apply it in the particular case.
Examples
- an actor playing character of a particular age.
- a catwalk model modelling a particular look
- however, choosing a younger employee because youth is more ‘commercially appealing’ is unlikely to be enough to satisfy the requirement
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Disability
The Equality Act 2010, Part 2, Chapter 2, Section 20 provides that there is no restriction on treating disabled people more favourably than non – disabled people. It is also permitted to take steps to meet the needs of people with a particular disability.
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Gender Reassignment
The Equality Act 2010, Part 1, Schedule 9 provides protection for transsexual people. Employers can impose a requirement that the protected requirement of an employee can apply to a person who proposes to, starts, undergoing or has completed a process to change their gender, provided that this is a genuine and determining occupational requirement and it is proportionate to apply it in the particular case. The Act no longer requires a person to be under medical supervision to be protected.
Example
- a woman who decides to live as a man but does not undergo any medical procedures would be covered.
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Race
The Equality Act 2010, Part 1, Schedule 9 and Sections 39 and 40 provides that employers can impose a requirement that an employee must be of a particular racial group, provided that this is a genuine and determining occupational requirement and it is proportionate to apply it in the particular case.
Example
A GOR may exist where the position involves providing welfare services to people of a particular racial group, where services can most effectively be provided by a member of the same racial group due to their understanding of cultural needs and sensitivities.
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Religion/belief
The Equality Act 2010, Part 1, Schedule 9 provides that employers can apply religion/belief requirements where it is a genuine and determining occupational requirement that the employee hold a particular religion/belief and it is proportionate to apply the requirement in the particular case.
Other requirements relating to religion or belief
In addition to the general GOR, section 3 provides that: " person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work
a. it is an occupational requirement,
b. the application of the requirement is a proportionate means of achieving a legitimate
aim, and
c. the person to whom A applies the requirement does not meet it (or A has reasonable
grounds for not being satisfied that the person meets it).
GORs have to be judged in relation to the specific job. So, if an organisation has a particular religious ethos this does not mean that all employees have to hold the beliefs of that religion. The GOR only applies if the duties of the particular job require it.
Examples
however, other roles within a religious organisation, such as a secretary or church organist are less likely to be covered.
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Sex
The Equality Act 2010, Part 1, Schedule 9 provides that direct discrimination on the basis of sex is not unlawful where there is a GOR. A GOR may exist for various reasons:
- if "the essential nature of the job would be materially different" if carried out by someone not of the required sex (eg an actor playing the role of the opposite sex)
- where it is necessary to preserve decency or privacy (eg a shop assistant providing a bra-fitting service or a prison officer carrying out body searches)
- if the employee is required to live in accommodation that is not equipped for people of that sex and it is not reasonable for the employer to make the necessary adjustments
- if the job can most effectively be performed by a person of a particular sex
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Sexual orientation
The Equality Act 2010, Part 1, Schedule 9 provides that a GOR may exist where being of a particular sexual orientation is a genuine and determining occupational requirement and it is proportionate to apply it in the particular case.
Examples
The general GOR may apply where:
- customers/service users are mainly of one sexual orientation (it is not sufficient if customers would simply prefer someone of a particular sexual orientation)
- the job requires understanding of a particular sexual orientation
- the job-holder will be a public face or role model for an organisation which campaigns on behalf of people who have a particular sexual orientation
- the majority of tasks require the job-holder to be of a particular sexual orientation; it would not be sufficient if only a few tasks require this
Organised religion GOR
In addition to the general GOR, if the employment is for the purposes of organised religion, the employer can apply a sexual orientation requirement, either:
"so as to comply with the doctrines of the religion", or
"because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers."
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