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 recruitment and which apply to all employers.
There are others that only apply to particular types of employer.
We only list the exceptions that apply to the situations covered in this guide. There are more exceptions which apply in other situations, for example, when you are selecting someone for redundancy. These are explained in the relevant guide in the series.
In addition to these exceptions, equality law allows you to:
- Treat disabled people better than non-disabled people.
- Use voluntary positive action. You can read more about positive action during recruitment.
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, even if this would otherwise be direct discrimination.
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.
An employer rejects an applicant for a management job because they are 25 years old and much younger than the people they would be managing.
An employer only makes people over 50 do an aptitude test, because the employer believes that people over 50 do not have the mental agility to learn to do a job.
These are both examples of age discrimination which an employer would find it very difficult to objectively justify.
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 would be an ‘occupational requirement’.
A women’s refuge may want to say that it should be able to employ only women as counsellors. Its client base is only women who are experiencing domestic violence committed by men. This would probably be a genuine occupational requirement.
You can take into account a protected characteristic where not doing this would mean you broke another law.
A driving school must reject a 19 year old who applies for a job as a driving instructor because to offer them a job – even if they are otherwise the best candidate – would involve breaking the law because a driving instructor must be aged at least 21.
You can take a person’s protected characteristic into account if there is a need to safeguard national security, and the discrimination is proportionate.
There are also exceptions that only apply to some employers:
- 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.
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 job is for the purposes of an organised religion, you may be able to say that a job or role requires a person to have or not have a particular protected characteristic or to behave or not behave in a particular way.
- 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 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.
This exception should only be used for a limited number of posts, eg ministers of religion, and a small number of posts outside the clergy, eg those which exist to promote or represent the religion. The requirement must be a proportionate way of meeting the aims stated above.
- If you are an employment service provider, you may be able to say that a person must have a particular protected characteristic to do vocational training, if the training leads to work for which having that characteristic is an occupational requirement.
- If you are an educational establishment like a school or college, you may be able to say that someone has to be of a particular religion or belief, or must be a woman.
- If you are recruiting to the civil, diplomatic, armed or security and intelligence services and some other public bodies, you can specify what nationality a person has to be.
- If you are recruiting for service in the armed forces, you may be able to exclude women and transsexual people if this is a proportionate way to ensure the combat effectiveness of the armed forces. In addition, age and disability are, in effect, not protected characteristics in relation to service in the armed forces. Disability can also be a reason to refuse someone work experience in the armed forces.
There are more details of these exceptions in the Glossary.
Good practice tips: 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, through the job advert if you use one to tell people about the recruitment.
Last Updated: 09 Jan 2015