Exceptions



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



• age: employers are allowed to justify age discrimination, within the limits explained on page 204;


• disability: it is not direct discrimination to treat a disabled person more favourably than a non-disabled person for example, 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 male co-workers (section 13(6)(b), EA 10). This is as long as any preferential treatment does not go beyond what is “necessary and proportionate” to eliminate the disadvantage. Otherwise the man will have a claim for sex discrimination (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 a core requirement of a job (not just one of several important factors). This exception is very narrowly interpreted. The employer must show that having (or not having) the protected characteristic is a proportionate means of achieving a legitimate aim (EA 10, Schedule 9). 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); 





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




• employment for the purposes of an organised religion: Schedule 9(2), EA 10 contains some specific exemptions that operate here.