Occupational Requirement exceptions to the Equality Act

The Equality Act 2010 combined various strands of equality legislation such as the Sex Discrimination Act 1975, Race Relations Act 1976 and the Disability Discrimination Act 1995. The Act outlawed discriminatory practices based on Protected Characteristics. These Protected Characteristics are as follows:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

What is an Occupational Requirement exception?

In the vast majority of cases, it is illegal to discriminate on any of the above grounds. However the Equality Act does give the right for some organisations to discriminate based on a specific set of circumstances. Schedule 9 details the reasons why a claim of direct discrimination may be lawful. Under certain circumstances, it may be lawful to discriminate where it is essential for someone of a particular characteristic to be employed to perform a role. An example of this may be employing a female employee to work in a women’s refuge.

In this article we are looking at what this means for Christian organisations whether a charity or church.

An Occupational Requirement exception effectively means that the charity or church can choose not to employ someone who has certain characteristics that do not reflect the ethos of the organisation. By ethos, we mean the statement of faith and beliefs. So for instance, you may be able to refuse to employ a person because:

• they are male or female
• they are a transsexual person
• they are married or in a civil partnership, including taking into account who they are married to or in a civil partnership with (such as someone who marries a divorced person whose former spouse is still alive)
• they manifest a particular sexual orientation, for example, a gay or lesbian or bisexual person who is in a relationship with a same-sex partner.
• They profess or don’t profess belief in a certain religion.

How do you determine whether a role is eligible for an Occupational Requirement?

There are 3 main tests to determine whether an Occupational Requirement may apply.

1. Does the organisation have an ethos based on the Christian religion? It should be able to demonstrate that the ethos is reflected in how it conducts its functions and in the nature and context of the work it does.
2. That given the nature and context of the work of the employer and particularly the work the role in question will undertake, that it is an occupational requirement that the post holder is of the Christian religion; and
3. That applying that OR is a proportionate means of achieving a legitimate aim. A legitimate aim could be any of the vision or aims of the church or charity. Achieving that aim proportionately will require the application of the OR to be “reasonably necessary” in order to achieve it. The application of the OR will not be considered reasonably necessary if the employer could have used less discriminatory means to achieve the same objective.

So even if you can prove that you are a Christian organisation, that doesn’t mean you can employ only Christians. Instead, you need to go a step further to then examine whether a non-Christian could effectively perform the role. If not, the proportionality of applying an OR may be questionable.

How would the Occupational Requirement work in practice?

Whilst we can’t provide a categoric list of roles that qualify, it is clear from the legislation is that the OR should be used for a limited number of posts. Examples of this would be ministers of religion, and a small number of posts outside the clergy. Those are roles which exist to promote or represent the religion.

In reality, does a Finance Assistant need to be a Christian to crunch your financials? What about a Fundraiser who needs to speak to churches to raise interest in the charity and its aims?

The more ‘Christian’ the content of the role, the more likely it is that you can build a successful Occupational Requirement defence in the event of any discrimination claims. However, you won’t know until an Employment Tribunal rules on the case. Our advice therefore is that you need to take a risk based decision before applying an OR.