Creating a fairer Britain
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:
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:
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.
you may be able to refuse to employ a person because:
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.
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: