Situations where equality law is different
Sometimes there are situations where equality law applies differently. This guide refers to these as exceptions.
There are several exceptions which relate to dismissal, redundancy or retirement and which apply to any employer:
- Age limits,
- Obeying another law, and
- National security.
There are two exceptions which relate to dismissal, redundancy or retirement and which apply only to some employers or jobs:
- Having or not having a particular religion or belief, which applies only to religion or belief organisations, and
- Having or not having a particular protected characteristic, which applies only to organised religions or jobs for the purpose of an organised religion.
There are also specific requirements which employers need to consider if redundancy decisions affect women who are pregnant or on maternity leave.
This guide only lists the exceptions that apply to dismissal, redundancy or retirement. There are other exceptions, which apply in other situations, for example, when you are recruiting someone to do a job.
As well as these exceptions, equality law allows you to treat a disabled person better – or more favourably – than a non-disabled person. This recognises that disabled people face a lot of barriers to participating in work and other activities.
Age is different from other protected characteristics. If you can show that it is objectively justified, you can make a decision based on someone’s age.
However, it is very unusual to be able to objectively justify direct age discrimination of this kind. Be careful not to use stereotypes about a person’s age to make a judgement about their fitness or ability to do a job.
This guide explains when you can make redundancy payments based on someone’s age, and what you must and must not do if you want an employee to retire because they have reached a certain particular age.
If you can show that a particular protected characteristic is central to a particular job, you can insist that only someone who has that particular protected characteristic is suitable for the job. This is known as an ‘occupational requirement'. If you have appointed a person using an occupational requirement and they no longer have that particular protected characteristic, equality law allows you to dismiss them without this being unlawful discrimination.
You can take into account a protected characteristic where not doing this would mean you broke another law. For example, if the law said that a person had to be a particular age to do something and you discovered that they were not that age, you could dismiss them without this being unlawful discrimination.
You can take a person’s protected characteristic into account if there is a need to safeguard national security, and the discrimination is proportionate.
If you are a religion or belief organisation, you may be able to say that a job requires a person doing the job to hold a particular religion or belief if, having regard to the nature or context of the job, this is an occupational requirement and it is objectively justified. You could then dismiss the person if they no longer held that religion or belief without this being unlawful discrimination.
A Humanist organisation which promotes humanist philosophy and principles would probably be able to apply an occupational requirement for its chief executive to be a Humanist. If the chief executive stopped being a Humanist, the organisation could dismiss them without this being unlawful discrimination.
- a job or role exists for the purposes of an organised religion, such as being a Minister or otherwise promoting or representing the religion, and
- because of the nature or context of the employment, it is necessary to avoid conflict with the strongly held religious convictions of a significant number of the religion’s followers or to conform to the doctrines of the religion by applying a requirement to the job or role,
you may be able to dismiss a person because:
- They are male or female (if the requirements of the post change bringing it within the exception).
- They are a transsexual person.
- They marry or enter into 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 person who enters into a relationship with a same-sex partner.
The requirement must be crucial to the job or role, and not merely one of several important factors. The job or role must be closely related to the purposes of the religion, and the application of the requirement must be proportionate.
Good practice tips on using exceptions
If someone disagrees with you and brings an Employment Tribunal claim, you may need to show why you thought an exception applied. When you’re making the decision:
- Look at the exceptions to see if they might apply to your situation or organisation.
- If you decide an exception does apply, keep a note of why you decided this.
- Tell people which exception you are using, for example, in any information you give workers about what you are doing.
Last Updated: 13 Jan 2015