SCHEDULES
SCHEDULE 9Work: exceptions
Part 1Occupational requirements
General
1
1
A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work—
a
it is an occupational requirement,
b
the application of the requirement is a proportionate means of achieving a legitimate aim, and
c
the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
2
The provisions are—
a
section 39(1)(a) or (c) or (2)(b) or (c);
b
section 41(1)(b);
c
section 44(1)(a) or (c) or (2)(b) or (c);
d
section 45(1)(a) or (c) or (2)(b) or (c);
e
section 49(3)(a) or (c) or (6)(b) or (c);
f
section 50(3)(a) or (c) or (6)(b) or (c);
g
section 51(1);
F4h
section 60A(1).
3
The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
a
in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to be ignored);
b
in the case of marriage and civil partnership, as references to a requirement not to be married or a civil partner (and section 8(2) is accordingly to be ignored).
4
In the case of a requirement to be of a particular sex, sub-paragraph (1) has effect as if in paragraph (c), the words from “(or” to the end were omitted.
Religious requirements relating to sex, marriage etc., sexual orientation
2
1
A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that—
a
the employment is for the purposes of an organised religion,
b
the application of the requirement engages the compliance or non-conflict principle, and
c
the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
2
The provisions are—
a
section 39(1)(a) or (c) or (2)(b) or (c);
b
section 49(3)(a) or (c) or (6)(b) or (c);
c
section 50(3)(a) or (c) or (6)(b) or (c);
d
section 51(1);
F5e
section 60A(1).
3
A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—
a
the qualification is for the purposes of employment mentioned in sub-paragraph (1)(a), and
b
the application of the requirement engages the compliance or non-conflict principle.
4
This sub-paragraph applies to—
a
a requirement to be of a particular sex;
b
a requirement not to be a transsexual person;
c
a requirement not to be married or a civil partner;
F1cb
a requirement not to be the civil partner of a person of the opposite sex;
d
a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
e
a requirement relating to circumstances in which a marriage or civil partnership came to an end;
f
a requirement related to sexual orientation.
5
The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.
6
The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
7
A reference to employment includes a reference to an appointment to a personal or public office.
8
In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1) has effect as if in paragraph (c) the words from “(or” to the end were omitted.
Other requirements relating to religion or belief
3
A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work—
a
it is an occupational requirement,
b
the application of the requirement is a proportionate means of achieving a legitimate aim, and
c
the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
Armed forces
4
1
A person does not contravene section 39(1)(a) or (c) or (2)(b) F6or section 60A(1) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces.
2
A relevant requirement is—
a
a requirement to be a man;
b
a requirement not to be a transsexual person.
3
This Part of this Act, so far as relating to age or disability, does not apply to service in the armed forces; and section 55, so far as relating to disability, does not apply to work experience in the armed forces.
Employment services
5
1
A person (A) does not contravene section 55(1) or (2) F7or section 60A(1) if A shows that A's treatment of another person relates only to work the offer of which could be refused to that other person in reliance on paragraph 1, 2, 3 or 4.
2
A person (A) does not contravene section 55(1) or (2) F8or section 60A(1) if A shows that A's treatment of another person relates only to training for work of a description mentioned in sub-paragraph (1).
3
A person (A) does not contravene section 55(1) or (2) F9or section 60A(1) if A shows that—
a
A acted in reliance on a statement made to A by a person with the power to offer the work in question to the effect that, by virtue of sub-paragraph (1) or (2), A's action would be lawful, and
b
it was reasonable for A to rely on the statement.
4
A person commits an offence by knowingly or recklessly making a statement such as is mentioned in sub-paragraph (3)(a) which in a material respect is false or misleading.
5
A person guilty of an offence under sub-paragraph (4) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Interpretation
6
1
This paragraph applies for the purposes of this Part of this Schedule.
2
A reference to contravening a provision of this Act is a reference to contravening that provision by virtue of section 13.
3
A reference to work is a reference to employment, contract work, a position as a partner or as a member of an LLP, or an appointment to a personal or public office.
4
A reference to a person includes a reference to an organisation.
5
A reference to section 39(2)(b), 44(2)(b), 45(2)(b), 49(6)(b) or 50(6)(b) is to be read as a reference to that provision with the omission of the words “or for receiving any other benefit, facility or service”.
6
A reference to section 39(2)(c), 44(2)(c), 45(2)(c), 49(6)(c), 50(6)(c), 53(2)(a) or 55(2)(c) (dismissal, etc.) does not include a reference to that provision so far as relating to sex.
7
The reference to paragraph (b) of section 41(1), so far as relating to sex, is to be read as if that paragraph read—
b
by not allowing the worker to do the work.