There are certain limited circumstances in which it is not unlawful for an employer to discriminate, and the most significant of these are set out here. In certain circumstances, it is also lawful for an employer to train or encourage applications from a particular group that is under-represented in its workforce, even though this amounts to discrimination against the majority group. This type of ‘positive action’ is discussed further below (positive action).
Job applicants over 65
The age discrimination legislation allows employers to discriminate on the ground of age in recruitment if the job applicant is within six months of, or older than, the employer’s normal retirement age or, if the employer does not have a normal retirement age, the age of 65.
Retirement
It is also lawful for an employer to discriminate by dismissing an employee when he or she reaches age 65, if the reason for the dismissal is retirement. The legislation contains complex provisions that explain when the reason for a dismissal is to be viewed as retirement. The rules on lawful retirement are summarised at (retirement).
Sex as a genuine occupational qualification
The law acknowledges that some jobs may be more suitable for a particular sex, or, as the discrimination legislation puts it, there are some circumstances when being of a particular sex is a ‘genuine occupational qualification’ (‘goq’) for the post. In these cases, it is lawful for an employer, if it wishes, to consider only people of that particular sex when it recruits to the job, or decides who to promote or transfer into it, or who to train for it.
Defining a ‘goq’
The circumstances in which a ‘goq’ applies are tightly defined. It is not enough, for example, that an employer thinks that a job should be done by a man because it needs physical strength or stamina, since both men and women can meet that criterion. The ‘goqs’ that are most likely to be relevant to the readers of this Guide are set out in the following box:
Relevant ‘goqs’
- It is lawful to restrict a job to a particular sex if this is necessary to preserve decency or privacy, because the job involves working in circumstances where people of that sex are undressed or using sanitary facilities and they might reasonably object to the presence of someone of the opposite sex.
- A job can be limited to a particular sex if the nature or location of the workplace means that the job holder must live on the premises, the premises lack separate sleeping accommodation and sanitary facilities for each sex, and it would not be reasonable for the employer to provide separate facilities.
- A company may restrict a job to men if the post is likely to involve working in a foreign country whose laws and customs would make it impossible for a woman to perform the job effectively.
- These ‘goqs’ can also be used to justify discrimination on gender reassignment grounds, but only if the employer can show that it is acting reasonably in all the circumstances. In gender reassignment cases, the ‘goqs’ can be used to justify dismissing someone from a job, as well as discriminating in recruitment, promotion, transfer and training.
- There is an additional ‘goq’ that permits discrimination against a person at the stage when he or she is planning to undergo or is currently undergoing gender reassignment. This applies where the job involves living on the premises and it would be reasonable for other employees to object to sharing accommodation and facilities with a person who intends to undergo or is undergoing gender reassignment, and it is not reasonable for the employer to make alternative arrangements.
- It should be noted, however, that an individual who has been issued with an official gender recognition certificate must be viewed for employment purposes as being of the sex the individual has acquired. It would therefore be unlawful for an employer recruiting to a job for which being a woman was a ‘goq’ to refuse to recruit an applicant with a gender recognition certificate confirming that she was now female, if the employer’s decision was based on the ground that the applicant was formerly a man.
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A ‘goq’ can apply where only some of the duties involved in a job fall within the specified circumstances. However, an employer cannot rely on a ‘goq’ if it already has existing employees of the relevant sex whom it would be reasonable for it to redeploy to the relevant duties, provided there are enough of those employees to meet its requirements without undue inconvenience.
Race, religion, sexual orientation or age as a genuine occupational requirement
The law also accepts that, in certain prescribed circumstances, employers may restrict certain jobs to people of a particular race, religion or sexual orientation, or require a person to possess a certain characteristic related to age. These exceptions apply only in very limited circumstances that are unlikely to be relevant to readers of this Guide.
Pregnancy and maternity
As a result of exceptions set out in the sex discrimination legislation, the fact that an employer may provide special, favourable treatment for women in relation to pregnancy and maternity cannot be challenged as sex discrimination against men.
Statutory authority
It is not unlawful for an employer to discriminate against a person on racial grounds or for reasons relating to the person’s disability if it is doing so in order to meet its obligations under other legislation. For example, if an employer needs to modify its equipment to meet its obligation to protect the health and safety of its machine operators, it can lawfully do so, even if that makes it impossible for a particular disabled employee to operate the equipment, even with a reasonable adjustment.
Restricting benefits to spouses
Some employers extend certain benefits, such as private health insurance and pension benefits, to employees’ legal spouses but not to unmarried partners. This puts gay and lesbian employees at a particular disadvantage because they are less likely to be married than their heterosexual colleagues. Nevertheless, the practice will not breach the sexual orientation legislation, provided employers also offer the benefits to employees’ civil partners. On the other hand, if employers offer benefits to employees’ partners it would be unlawful to exclude same-sex partners.