Recruitment: relying on the general occupational requirement exception

Normally if you restrict recruitment to candidates with a particular protected characteristic, there is a risk of unlawful direct discrimination. However, there are some limited exceptions, including the 'general occupational requirement' exception.

What is the 'general occupational requirement' exception?

The 'general occupational requirement' (GOR) exception can be relied on by an employer facing a direct discrimination claim. In the context of recruitment, it enables an employer to say that, due to the nature of the role, only those who hold a particular protected characteristic are suitable for it.

To rely on this exception, you need to show that having a particular protected characteristic is an occupational requirement (crucial for the particular job) i.e. the nature or context of the work means that an individual must:

• be of a particular sex, race, disability, religion or belief, sexual orientation or age;
• be pregnant; or
• not be transsexual, married or a civil partner.

The requirement must be a proportionate means of achieving a legitimate aim.

You can rely on the defence, for example to justify a decision not to recruit a candidate, if they do not meet the particular occupational requirement (or, other than in sex cases, you have reasonable grounds for not being satisfied that they meet it).

Examples of the GOR exception

• 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.
• Employing an individual of a particular race, sex or age might be required to provide authenticity or realism (e.g. when hiring an actor in a historic theatrical performance or for modelling jobs).
• A refuge for women who have experienced domestic violence might be justified in only employing female support workers.
• Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if those services are provided by a man.

Practical tips for employers

• Decide whether a GOR might apply before advertising a vacancy. In July 2024 the EHRC updated its guidance on job adverts to provide clarity around GORs. The updated guidance states that occupational requirements relating to 'sex' means legal sex recorded on someone's birth certificate or gender recognition certificate. 
• Consider all roles in your business separately. Just because you can demonstrate that a GOR relates to one position, does not mean that it will apply to others.
• Where you have been able to reply on a GOR as the basis for employing someone, and rejecting other candidates, don't assume that the GOR remains justified for the same role in the future. Review your recruitment process and GORs whenever a vacancy arises as circumstances change.
• Where only a few duties involved in a role require the applicant to hold a particular protected characteristic, think about whether those duties can be given to other existing employees with that characteristic.

For more information about anything discussed in this blog, please contact a member of the Brodies Employment and Immigration team. Workbox by Brodies, our HR and employment law site, has practical information and resources on recruitment including a page on positive action and occupational requirements.