Introduction
This essay will explain the purpose of the Ninth Schedule of the Equality Act 2010. The Equality Act 2010 (‘the Act’) is a key piece of legislation which consolidates and strengthens previous anti-discrimination laws, providing a legal framework to protect the rights of individuals and advance equality of opportunity for all (GOV.UK, 2015). A central principle of the Act is the prohibition of direct discrimination in the workplace. However, the law recognises that in very limited circumstances, a job may genuinely require a person to have a particular protected characteristic. The purpose of the Ninth Schedule is to provide a specific, narrow exception to the rule against direct discrimination in these exceptional cases. This is known as the ‘occupational requirement’. This essay will argue that the purpose of Schedule 9 is to create a necessary and proportionate balance between the fundamental right to be free from discrimination at work and the legitimate operational requirements of employers in certain defined situations. To do this, the essay will first outline the general prohibition on direct discrimination before explaining the legal test for an occupational requirement under Schedule 9. It will then analyse how this test is applied in practice with reference to case law, before concluding on the schedule's overall role within the Act.
The Default Position: Prohibition of Direct Discrimination
To understand the purpose of Schedule 9, it is first necessary to understand the rule to which it is an exception. The Equality Act 2010 prohibits employers from discriminating against employees and job applicants (Equality Act 2010, s 39). The Act identifies nine ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation (Equality Act 2010, s 4).
The most straightforward form of discrimination is direct discrimination, defined in section 13 of the Act. This occurs where, because of a protected characteristic, a person (A) treats another (B) less favourably than A treats or would treat others. For example, it would be direct discrimination for an employer to refuse to interview a male candidate for a receptionist role simply because they are a man, if they would have interviewed a female candidate with the same qualifications.
A key feature of direct discrimination is that, with the sole exception of age, it cannot be justified by an employer as being a ‘proportionate means of achieving a legitimate aim’. This means that there is generally no defence for treating someone less favourably because of a protected characteristic like their race, gender, or religion. The prohibition is almost absolute. It is this strict position that makes a specific statutory exception like the one in Schedule 9 necessary. Without it, there would be no legal way for an employer to insist on a particular characteristic, even where it seems essential for the job, such as requiring a female counsellor in a women’s rape crisis centre.
The Occupational Requirement Exception in Schedule 9
The Ninth Schedule of the Act provides the specific, detailed exception to this general rule. Part 1, paragraph 1 of the Schedule contains the 'occupational requirement' (OR) exception. This replaced the similar but more restrictive 'genuine occupational qualification' (GOQ) provisions that existed in previous legislation like the Sex Discrimination Act 1975 and Race Relations Act 1976.
Paragraph 1(1) states that a person (A) does not contravene the employment provisions of the Act by applying a requirement for a person to have a particular protected characteristic, so long as A can show that two conditions are met. These conditions, which form a two-part test, are set out in paragraph 1(2):
- The requirement is an occupational requirement.
- The application of the requirement is a proportionate means of achieving a legitimate aim.
The purpose of this test is to set a high bar for employers. It is not enough for an employer simply to prefer someone with a certain characteristic or to believe it would be better for business. They must be able to demonstrate that the requirement is a genuine necessity for the role and that there is no less discriminatory way of achieving their objective.
The concept of a ‘legitimate aim’ means the employer’s reason for the requirement must be legal and justifiable in a business context. The Equality and Human Rights Commission (EHRC) Code of Practice, which courts must take into account, gives examples of legitimate aims. These include respecting the privacy and decency of service users (for example, requiring a female carer to provide intimate personal care to an elderly woman) or the need for authenticity in an artistic performance (for example, requiring a black actor to play the historical figure of Nelson Mandela) (EHRC, 2011).
The second part of the test, 'proportionality', is crucial. The employer must show that the discriminatory requirement is both an appropriate and necessary way to achieve the legitimate aim. If the aim could be achieved through less discriminatory means, then the OR will not be justified. For example, if a shop selling women’s lingerie argued it needed female staff for reasons of decency in the fitting rooms, this may fail the proportionality test if the same aim could be achieved by allocating fitting room duties to female staff while allowing male staff to work on the shop floor (EHRC, 2011).
The purpose, therefore, is to force employers to rigorously justify any departure from the principle of non-discrimination, ensuring that the exception is used only where genuinely necessary for the performance of the job.
The Application and Limits of the Exception
The courts have interpreted the occupational requirement test strictly. Pre-Act cases dealing with the old GOQ provisions remain relevant for illustrating the principles. In Etam plc v Rowan [1989] IRLR 150, a tribunal accepted that being a woman was a GOQ for a sales assistant in a women’s clothing shop because the role involved taking measurements in the changing rooms, and it was accepted that this would be inappropriate for a man to do. This demonstrates the exception working to protect the decency and privacy of customers.
However, the exception cannot be used based on customer preference or stereotypes. In London Borough of Lambeth v CRE [1990] IRLR 231, an employer tried to argue that two management positions in its housing department should be reserved for Afro-Caribbean or Asian applicants, arguing this was necessary for the service to be effective in a diverse borough. The Court of Appeal rejected this, ruling that the need for a service to be 'credible' with a particular racial group was not sufficient to justify a GOQ. This shows that the purpose of the exception is not to facilitate social engineering or to cater to perceived prejudices, but to address genuine functional requirements of a specific job.
Schedule 9 also contains more specific provisions that clarify its purpose in certain contexts. For example, paragraph 2 provides a separate OR for employment relating to an organised religion. An employer can require a person to be of a particular religion if, due to the doctrines of the religion or to avoid conflicting with the strongly-held beliefs of a significant number of its followers, such a requirement is necessary. The purpose here is to protect the freedom of religious organisations to operate according to their core beliefs. For example, the Catholic Church can require its priests to be male and Catholic.
Furthermore, paragraph 4 of the Schedule provides a specific exception for the armed forces, stating that the protected characteristics of age, disability, gender reassignment and sex can be an occupational requirement if it is a proportionate means of ensuring the ‘combat effectiveness’ of the forces. The purpose is to allow the armed forces to maintain operational effectiveness, recognising the unique physical and psychological demands of military service.
It is important to note the limits of the Schedule. The OR exception can only ever be used to justify what would otherwise be direct discrimination. It cannot be used as a defence for harassment or victimisation. Moreover, even where an occupational requirement exists for some parts of a role, an employer should still consider whether they can recruit someone without the characteristic and simply reallocate the specific duties to another employee. This reinforces the idea that the purpose is not to exclude people from employment entirely, but to deal with specific, unavoidable job functions.
Conclusion
In conclusion, the purpose of the Ninth Schedule of the Equality Act 2010 is to provide a carefully managed and narrow exception to the otherwise strict prohibition on direct discrimination in employment. It acknowledges that there are rare situations where business reality or the fundamental nature of a task means that having a specific protected characteristic is a genuine and necessary requirement of the job. It is not a broad permission for employers to discriminate based on preference or prejudice.
This purpose is achieved through a strict, two-part legal test requiring both a 'legitimate aim' and 'proportionality'. This test, policed by employment tribunals and courts, ensures the exception is not abused. The structure of the Schedule, with its general test supplemented by specific rules for contexts like religion and the armed forces, illustrates a pragmatic attempt by Parliament to balance the crucial goal of workplace equality with the functional necessities of certain employers. Ultimately, the Ninth Schedule serves as a critical, if limited, legal mechanism that allows the principles of equality law to coexist with the practical realities of the world of work.
References
Etam plc v Rowan [1989] IRLR 150
Equality Act 2010
Equality and Human Rights Commission (EHRC), (2011). Equality Act 2010 Code of Practice on Employment (Statutory Code of Practice). London: TSO.
GOV.UK, (2015). Equality Act 2010: guidance. [online] Available at: https://www.gov.uk/guidance/equality-act-2010-guidance [Accessed 15 May 2024].
London Borough of Lambeth v Commission for Racial Equality [1990] IRLR 231
