Chapter 16Employing labourrefuse an applicant aged 80 employment in a pantomine
as Peter Pan!
2 Other major exceptions. These are as follows:
(a)Private households. Race discrimination is not unlaw-
ful where the employment is in a private household.
Sex and marital discrimination is now unlawful even
in private households (Sex Discrimination Act 1986).
However, the 1986 Act provides that sex discrimination
may take place where the job is likely to involve the
holder of it doing his work or living in a private house
and needs to be held by a man because objection might
reasonably be taken to allowing the degree of physical
or social contact with a person living in the house or
acquiring the knowledge of intimate details of such a
person’s life.
(b)Work outside Great Britain. Discrimination legisla-
tion does not apply where the employment is wholly
outside Great Britain. However, it does apply to work on
a British ship, aircraft or hovercraft unless the employ-
ment is wholly outside Great Britain.
As regards employment outside Great Britain, it
should be borne in mind that under Art 39 of the Treaty
of Rome, which is directly applicable, there must be no
discrimination on grounds of nationality against work-
ers from the EU member states so that discrimination
legislation must be applied to protect them. Thus, in
Bossav Nordstress(1998) a person of Italian nationality
living in Great Britain was not interviewed for aircraft
cabin crew to be based in Italy. The EAT decided that his
claim for racial discrimination must be heard. The deci-
sion means, in effect, that the employment outside Great
Britain exclusion does not apply where the employment
is in another European Union member state.
The previous rule that the UK discrimination provi-
sions did not apply where the job was ‘wholly or mainly’
outside Great Britain was changed by the Equal Oppor-
tunities (Employment Legislation) (Territorial Limits)
Regulations 1999 (SI 1999/3136), so that the employ-
ment must now be wholly outside Great Britain. This
strengthens workers’ rights.
It is important to note that the 1999 regulations (often
referred to as the Posted Workers Regulations) apply
UK discrimination and employment protection law
only to those who are basically employed in the UK but
are posted abroad. Those who are employed abroad, as
distinct from employed here but posted abroad and
working wholly abroad, may in rare circumstances be
covered where, according to the House of Lords in
Lawsonv Serco Ltd(2006), the employee is recruited to
work abroad but in what amounts to an extra-territorial
enclave in a foreign country, as in Mr Lawson’s case. He
was working for a private firm at an RAF base on Ascen-
sion Island.
(c)Special cases. The anti-discriminatory rules apply to
Crown appointments. However, certain public sector jobs
are not entirely covered by the discrimination provi-
sions, e.g. there may be discrimination as regards height
in the police and prison services. The armed forces are
given protection except where sex discrimination is neces-
sary to ensure ‘combat effectiveness’. The legal barriers
to men becoming midwives have been removed.
Other special cases are set out in s 5 of the Employ-
ment Act 1989 under which the appointment of head
teachers in schools and colleges may be restricted to
members of a religious order where such a restriction is
contained in the trust deed or other relevant instrument.
Furthermore, a university professorship may be restricted
to a man if there is a statutory requirement that the
holder of the post should also be a canon. In practice
this will apply only to certain professorships of Divinity.
Finally, academic appointments in university colleges
may be restricted to women where this was required
when the 1989 Act came into force. In practice the pro-
vision applies to two colleges at Oxford – Somerville and
St Hilda’s – and to two at Cambridge – Lucy Cavendish
and Newnham. The Secretary of State has power to
remove these exemptions by statutory instrument.
(d)Positive discriminationis allowed in regard to any
payments made or special conditions allowed in the
training of single (or lone) parents. Thus payment of child
care costs for single parents in the context of special
training and employment and enterprise schemes does
not amount to unlawful discrimination against married
people under the 1975 Act.
Other exceptions also known as ‘positive action’ are
designed to help women (and, less likely, men) compete
on equal terms in the labour market. Thus an employer
can run single sex training courses so as to equip women
(or men) with skills for specific jobs in which they are
under-represented. Selection must nevertheless always
be made on merit. Similar arrangements may be made
for under-represented racial groups.Types of discrimination
There are two forms of discrimination as follows:521