The current legislation on race, religion or belief, age, and sexual orientation sets out a "genuine occupational requirement" (GOR) defence. This enables an employer to stipulate that, because of the nature of the job in question, only people of a particular race, religion, age etc are eligible. In relation to sex, gender reassignment and nationality there is no general "GOR" defence, but there are specific "genuine occupational qualifications" (GOQs) serving a similar purpose. For example, the Sex Discrimination Act 1975 contains GOQs relating to the provision of personal welfare services; and where it is necessary to preserve decency or privacy.

Genuine occupational requirements

The current legislation on race, religion or belief, age, and sexual orientation sets out a "genuine occupational requirement" (GOR) defence. This enables an employer to stipulate that, because of the nature of the job in question, only people of a particular race, religion, age etc are eligible. In relation to sex, gender reassignment and nationality there is no general "GOR" defence, but there are specific "genuine occupational qualifications" (GOQs) serving a similar purpose. For example, the Sex Discrimination Act 1975 contains GOQs relating to the provision of personal welfare services; and where it is necessary to preserve decency or privacy.

The Equality Act removes the specific GOQs and introduces a new general occupational requirement test across all the protected grounds including disability (applying to direct and indirect discrimination only). The new test does not need the occupational requirement to be 'genuine and determining' (as was previously required), although according to the Explanatory Notes to the Act, "the requirement must be crucial to the post and not merely one of several important factors". Even if possessing a particular characteristic is an occupational requirement, the employer must still show that applying the requirement is a 'proportionate means of achieving a legitimate aim'.

Examples:

  • Considerations of privacy or decency might require a public changing room attendant to be of the same sex as those using the facilities.
  • An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL.
  • Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.
  • The existing specific defences relating to organised religions and organisations with an ethos based on religion or belief appear in the Act with slightly different wording (which is unlikely to result in any practical change).

In practice

Employers who currently rely on a specific GOQ will have to review their recruitment and promotion criteria to ensure that any requirement to have a particular protected characteristic falls within the new general occupational requirement test. Is it an occupational requirement (crucial for the particular job) and is it a proportionate means of achieving a legitimate aim? Existing employees who were recruited or promoted under a valid GOQ are not affected.

Contributors

Joan Cradden

Partner

Joyce Cullen

Partner

Lynne Marr

Partner

Tony Hadden

Head of Employment & Partner