Occupational requirements and positive action

While discrimination in employment is generally prohibited, in certain circumstances an employer may have a defence to an act of discrimination that is otherwise unlawful.

Since 1 October 2010, the following exceptions, have applied across most of the discrimination strands:

  • occupational requirements,
  • positive action,
  • statutory provisions that require “discriminatory” treatment,
  • national security and in relation to employment by a provider of benefits to the public.

There are also a number of exceptions set out in the EqA 2010 that are stated to specifically apply to a particular protected characteristic.

Occupational requirements

The EqA 2010 sets out a number of occupational requirement (OR) exceptions that employers might rely on when facing discrimination claims:

The general Occupational Requirement (OR) exception. This is available where, having regard to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner) is an OR (paragraph 1, Schedule 9, EqA 2010).

Employment for the purposes of an organised religion

Where, to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers, the employer might apply an OR that:
• the employee be of a particular sex;
• the employee not be a transsexual person, married or a civil partner;
• the employee not be married to, or the civil partner of, a person who has a living former spouse or civil partner;
• relates to circumstances in which a marriage or civil partnership has ended; or
• relates to sexual orientation.

Employers with a religious ethos

An employer with an ethos based on religion or belief may, in certain circumstances, show that being of a particular religion or belief is an OR.

Armed forces

An employer can require a job to be done by a man, or by someone who is not a transsexual person, if this is a proportionate means of ensuring the combat effectiveness of the armed forces (paragraph 4, Schedule 9, EqA 2010). Note that service in the armed forces is exempt from the EqA 2010’s workplace, age and disability discrimination rules in any event.

Employment services

An employment service provider (such as a job centre or an employment agency or business) can treat a person with a protected characteristic less favourably if the treatment relates to work that could be refused to that person because of an OR (paragraph 5, Schedule 9, EqA 2010).

Positive action

The EqA 2010 contains provisions concerning lawful positive action, which are designed to apply where persons who share a protected characteristic suffer a disadvantage connected to the characteristic, have particular needs or are disproportionately under-represented.

Employers can take certain actions to address these problems without opening themselves up to discrimination claims brought by people without the relevant protected characteristic.

Employers are not obliged to take positive action under the EqA 2010. However, it should be noted that:

  • Public sector employers may have a duty to consider it under the public sector single equality duty.
  • All employers have a duty to make reasonable adjustments for disabled people, which might overlap with the scope of the positive action provisions.

There are two positive action provisions

The general positive action rule.

This can apply where an employer reasonably thinks that persons with a particular protected characteristic are disadvantaged, have different needs or are disproportionately under-represented. In those circumstances, the employer can take proportionate measures to enable or encourage persons with the relevant characteristic to overcome that disadvantage, to meet their needs, or to enable or encourage their increased participation (section 158, EqA 2010).

Positive action in recruitment and promotion.

This provision, which was not brought into force until April 2011, has proved to be controversial. It applies where an employer reasonably thinks that persons with a particular protected characteristic are disadvantaged or that their participation in an activity is disproportionately low.

In those circumstances, the employer can treat a person with the relevant characteristic more favourably than others in recruitment or promotion, as long as the person with the relevant characteristic is “as qualified as” those others (section 159, EqA 2010).