Exceptions


Here are the main exceptions to the general prohibition of less favourable treatment due to a protected characteristic:


• disability: it is not direct discrimination to treat a disabled person more favourably than a non-disabled person for example, by offering all disabled candidates a guaranteed job interview (section 13(3), EA 10).




• pregnancy and childbirth: it is not direct sex discrimination to give special treatment to a woman in connection with her pregnancy or childbirth, even if this means treating them better than their male co-workers (section 13(6)(b), EA 10). However, any preferential treatment must not go beyond what is “necessary and proportionate” to eliminate the disadvantage (Eversheds Legal Services Limited v de Belin [2011] UKEAT0352).




• genuine occupational requirement: There is an exception in the EA 10 where having (or not having) a protected characteristic is an essential requirement for a particular job. This exception is very narrowly interpreted. Here are some examples of permitted use of the “genuine occupational requirement” exemption: 




◊ an acting role might need to be performed by someone of a particular sex;




◊ where it is important to maintain privacy and decency (for example, the need for a female attendant in women’s changing rooms); or




◊ where a personal service is provided, for example, support for women in a refuge who have suffered domestic violence.