The occupational requirement exception – can you require an employee not to look pregnant?
The starting point in any claim of discrimination will always be a ‘protected characteristic’, cited by a Claimant as the reason for negative treatment of some kind. There are narrowly defined circumstances in which employers are lawfully permitted to discriminate against employees, including where the employer can demonstrate that having a particular protected characteristic is an occupational requirement. Such cases may involve people of a specific race, religion or gender delivering welfare or health services which have particular sensitivities.
The ‘occupational requirement’ exception means that it will not be discriminatory for an employer to require an employee (or prospective employee) to have a particular protected characteristic and it will be lawful to recruit, dismiss or promote someone on the basis of that protected characteristic. There are limitations, of course, and the employer must be able to show that:
- The claimant does not meet the requirement (a rather obvious one); and
- The application of the requirement is a proportionate means of achieving a legitimate aim.
In a very unusual attempt to use this exception, a recent Employment Tribunal case considered the occupational requirement in relation to an actor. In this case, the production company tried to defend dropping an actor for being pregnant, claiming that it was an occupational requirement that she was NOT pregnant.
Ms Kinlay played a key character in the first instalment of “The Strike Series”, broadcast by the BBC, but was then replaced in further instalments by another actor because she was pregnant.
Ms Kinlay would have been 20 weeks pregnant by the time shooting of the second instalment began and shooting was due to last 60 days, ending shortly before Ms Kinlay’s due date.
She brought a claim against the production company for unfavourable treatment due to her pregnancy and failure to be offered the role again due to being pregnant. The production company argued that it was a general occupational requirement that the actor playing the particular role not be visibly pregnant.
The Employment Tribunal disagreed that the production company could rely upon a general occupational requirement as it had been unable to demonstrate that it was a proportionate means of achieving a legitimate aim. In determining this point, the tribunal considered the factual context and found that it would have been possible to conceal Ms Kinlay’s pregnancy during filming or editing. It also considered and rejected the Respondent’s arguments about the risk of a pregnant actor being unwell leading to additional costs.
The Tribunal awarded Ms Kinlay relatively considerable damages of just over £10,000 (including interest) for financial loss and injury to feelings.
Although these facts are unlikely to crop up in many workplaces, this case is a useful illustration of the application of the occupational requirement and the reluctance of the tribunal in permitting the employer to cite the exception to defend discriminating against someone who had a protected characteristic. Most proposed uses of the occupational requirement will involve actively recruiting someone with the specific characteristic, as opposed to this case, which sought to specifically exclude an applicant with a protected characteristic.
In fact, discrimination legislation (the Equality Act 2010) does not permit a general occupational requirement NOT to have a particular protected characteristic when it comes to pregnancy or maternity discrimination. This is only permitted in relation to gender reassignment and marriage and civil partnerships, e.g. it could be an occupational requirement that someone NOT be married, in relation to certain religious offices.
We would recommend that employers think carefully about what practical alternatives might be available to an occupational requirement, and whether it is reasonable in the circumstances to utilise these alternatives instead. However, in circumstances where having an occupational requirement is deemed necessary but there are associated risks, employers should carry out and carefully document any risk assessments as evidence to support their reliance on the requirement.