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Occupational requirements must be applied proportionately to avoid liability for discrimination
Adrian Fryer
Paragraph 1 to schedule 9 of the Equality Act 2010 sets out the general occupational requirement exception, which applies to direct discrimination claims. There will be no liability for direct discrimination where holding a particular protected characteristic (or, in some cases, not holding it) is an occupational requirement.
The application of the requirement must, however, be a proportionate means of achieving a legitimate aim. The exception is not without limit – as the Respondent found in the recent Employment tribunal case of Donnelly v PQ. In this case, the Respondent was a physically disabled woman who had employed the Claimant (a man) as one of her carers. During the Claimant’s probationary period, the Respondent decided that she had concerns about a man providing intimate care. She extended his probationary period. Upon discovering the reason for the probation extension, the Claimant resigned.
The reason for extending probation was because the Claimant was a man. The Respondent was not comfortable with the idea of a man providing the full range of toilet care that she needed. The Claimant made a claim for direct sex discrimination.
The Respondent sought to rely on the general occupational requirement exception. The employment tribunal held that extending the probationary period was discrimination, in the way that the Respondent afforded the Claimant access to an opportunity for promotion. The occupational requirement exception could be applied in principle – it was an occupational requirement for a personal assistant to be a woman to carry out the full requirements of that role. The Respondent had a legitimate aim of privacy and dignity. However, her means of achieving that aim in extending the Claimant’s probationary period were not proportionate. The Respondent could have preserved her privacy and dignity in less discriminatory ways, including overlapping his shifts with female carers, explaining concerns before any need to extend probation arose and creating the opportunity to build a relationship of trust before such care was required.
This case is a reminder of the narrow application of the general occupational requirement exception. It will only be relevant in exceptional circumstances and its application must be justified.