Exceptions

• Author: Vickers, Lucy
• Pages: 36-47

36

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In the UK , national legislation provides an exception in accordance with Article 4 for

genuine and determining occupational requirements. The words ‘genuine and determining’,

which are used in Article 4 Directive 2000/78/EC, were removed in the Equality Act 2010

on the basis that the words are superfluous. T he assumption is that the objective of such

a requirement will not be legitimate or proportionate if it is not genuine or det ermining.

In GB, the EqA applies a general occupational requirement defence across all the protected

grounds (Schedule 9 parag raph 1). There are, in addition, broader exceptions applicable

to religious organisations. Schedule 9 paragraph 3 permits organisations with an ethos

based on religion or belief to discriminate on gr ounds of religion or belief but not on other

grounds. Schedule 9 paragraph 2 allows discrimination on grounds of sexual orientation,

sex, marriage or civil partnership for where employment is for the purposes of an organised

religion (discussed in 4.2 below). (A general justification defence also applies in respect of

age discrimination.)

In NI, the RRO (Article 8(2)) lists four types of jobs where being of a particular colour or

nationality may b e a genuine occupational qualification. 105 In th e case of race and ethnic

and national origins, however, the RRO applies a new generic GOR defence for race, ethnic

or national origins, which is the same as that which applies under the SOR 2003 and the

Age Regs (i. e., whether having a particular protected characteristic is a genu ine and

determining occupational requirement which it is p roportionate to apply in the particular

case).106 The DDA does not provide a GOR but FETO permits discrimination on grounds of

religious belief in the recruitment of teachers (Article 71) , police (A rticle 71A) and clergy

(Article 70). In addition, Article 70(3) provides for an exception where th e holding, or not

holding, of a particul ar religious belief is an occupational requirement and th e application

of the requirement is a proportionate means of achieving a legitimate aim.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In the UK, national law provides an exception for employers with an ethos based on religion

or belief.

GB

The EqA provides, in relation to religion or belief, an additional occup ational requirement

defence (Schedule 9, paragraph 3) where an employer has an ethos based on religion or

belief and, having regard to that ethos and the nature and context of the job, being of a

particular religion or belief is an occupat ional requirement, ‘the application of the

requirement is a proportionate means of achieving a legitimate aim, and the person to

whom … t he requirement [is applied] does not meet it ( or [ the p erson applying it] has

reasonable grounds for not being satisfied that the person meets it) ’.

105 a) participation in a dramatic performance, b) participation as an artist’s or photographer’s model, c)

working where food or drink is provided to the public in a particular setting where a person of a particular

racial group is required for reasons of authenticity, and d) providing persons of a particular racial group with

personal services promoting their welfare which can most effectively be provided by a person of that racial

group. The only case law in this area makes it clear that these provisions are to be narrowly interpreted: in

particular, Lambeth London Borough Council v Commission for Racial Equality [1990] ICR 768, [1990] IRLR

231.

106 Race Relations (NI) Order 1997 (RRO) Art 7A, Employment Equality (Sexual Orientation) Regulations (NI)

2003 (SOR 2003) reg 8; Employment Equality (Age) Regulations (NI) 2006 (Age Regs) reg 9. RRO Art 8

contains a narrower GOR and applies to colour and nationality, grounds not protected within the EU Race

Directive.