From Lawpack's Employment Contracts Kit.
No matter whether employers are recruiting through employment agencies, job centres, careers offices or schools, they have a duty not to discriminate on the grounds of sex (including gender reassignment), sexual orientation, race, marital status, disability, membership or non-membership of a trade union, and religion or religious belief.
They must neither give instructions nor bring pressure to discriminate in any of these ways. In relation to pregnancy, any decision not to appoint a woman on the grounds that she is pregnant is likely to be found to be discriminatory against sex.
Exceptions
There are some jobs for which the sex or race of the successful candidate may be a 'genuine occupational qualification' and in these circumstances discrimination in advertisements, in the interview procedure, in job offers, in offers of promotion, training or transfers is acceptable.
Sex
A person's gender is a genuine occupational qualification for a job in the following circumstances:
- Where the essential nature of the job calls for someone of a certain sex for reason of physiology, e.g. a female model.
- Where it is necessary to preserve decency or privacy, because the job is likely to involve physical contact with people of the opposite sex in circumstances where those people may reasonably object to the job holder being of the opposite sex, or because the holder of the job is likely to do work in the presence of people who are in a state of undress or are using sanitary facilities and therefore might reasonably object to the presence of a person of the opposite sex. The application of this genuine occupational qualification depends on all the circumstances; it must be necessary rather than merely preferable to have a member of the opposite sex in question to perform the job.
Being a woman is not necessarily a genuine occupational qualification for a job as a nanny or domestic help; each case depends on its own facts. If, for example, the mother likes to bath with the baby and the nanny is expected to come into the bathroom during bath-times, this is a factor which may be taken into account in assisting a defence of sex discrimination by a male nanny who is unsuccessful against a woman in a job application. However, in many cases concerning male nannies, the genuine occupational qualification defence will not apply. - Where the nature or location of the job means that the job holder must live in the premises provided by the employer. Because it is impractical for them to live anywhere else and the premises are not equipped with separate sleeping accommodation or sanitary facilities for men and women, it is unreasonable to expect the employer to equip the premises with such accommodation or facilities.
- Where the job is in a single-sex establishment or single-sex part of an establishment for people requiring special care, supervision or attention, and the essential character of that establishment or that part makes it reasonable to restrict the job to a person of the same sex as those for whom the establishment (or that part of it) exists.
- Where the job is for the provision of personal services to people in order to promote their welfare, education or other similar services and those services can most effectively be provided by someone of a certain sex.
- Where the job involves working outside the UK in a country whose laws and customs are such that the duties could not, or could not effectively be performed by a man (or by a woman).
- Where the job is one of two held by a married couple.
Race
A person's race is a 'genuine occupational qualification' for a job in the following circumstances:
- Where the job involves dramatic performance and someone of a particular racial group is required for authenticity.
- Where the job involves working as a model for producing works of art, picture or film and a person of a racial group is needed for authenticity.
- Where the job involves working in a restaurant open to the public in a particular setting for which someone of a particular racial group is required for authenticity.
- Where the job involves the provision of personal services to a particular racial group in order to promote their welfare and those services can be best provided by someone from the same racial group.
As with sex and race discrimination, there are some jobs for which the sexual orientation or religion or belief of the candidate may be a genuine occupational qualification.
Age
There is no express legislation prohibiting discrimination on the grounds of age, but there is a voluntary code of practice which attempts to tackle the problem of age discrimination. The Government has announced proposals to introduce laws to stop age discrimination by 2006.