As regards race, it is lawful to discriminate where there
is a GOQ for the job as, for example, in the employment
of a West Indian social worker or probation officer to
deal with problems relating to young West Indians. Other
instances are dramatic performances or other entertain-
ment, artists or photographic models and employment
in places serving food or drink to be purchased and
consumed on the premises by the public. Thus, being
Chinese is a GOQ for employment in a Chinese restaur-
ant, but not necessarily in a ‘take-away’.
The law sometimes refers to genuine occupational
requirement(GOR) as it does in religion or belief and
sexual orientation. As regards religion or belief, there may
be a GOR where the employer has an ethos based upon
a particular religion or belief, such as a denominational
school. If the employer can show that a particular reli-
gion or belief is a requirement of the job, then a GOR
may be applied to exclude applicants of other faiths or
none.
As regards sexual orientation, it may be lawful to treat
a gay person differently where the work is in an area
such as the Middle East where homosexuality is illegal
and may lead to proceedings against gay men, lesbian
women and bisexuals. The law also allows difference in
treatment where the work is for the purposes of organ-
ised religion.
The age discrimination regulations allow for excep-
tions based on a genuine occupational requirement. The
nature of the contract or the context in which it is car-
ried out are relevant. Thus it would not be unlawful toPart 4Business resources
520
women worked 12-hour shifts with rest periods and that
beds were provided for their use during such breaks.
The women undressed to their underwear during these
rest breaks. The claimant complained that by advertis-
ing for women the defendants were contravening the
Sex Discrimination Act 1975. The defendants pleaded
genuine occupational qualification, i.e. that women were
required because the removal of the uniform during rest
periods was incidental to the employment.
The Employment Appeal Tribunal accepted that
defence. The defence of preservation of decency was, in
the circumstances, a good one. It was reasonably incid-
ental to the women’s work that they should remove their
clothing during rest periods.
Comment. However, s 27(4) of the 1975 Act imposes a
duty on employers to take reasonable steps to avoid
relying on the GOQ exceptions. Thus, in Etam plcv
Rowan(1989) Steven Rowan applied for a vacancy as a
sales assistant in Etam’s shop in Glasgow which sold
only women’s and girls’ clothing. He was not considered
for the post because of his sex and complained to an
employment tribunal. There was later an appeal by the
employer to the Employment Appeal Tribunal (EAT). The
EAT affirmed the employment tribunal’s award of £500
to Mr Rowan. He had been discriminated against on the
grounds of sex. The EAT found that he would have been
able quite adequately to carry out the bulk of the job of
sales assistant. Such parts as he could not carry out,
such as attendance on women in fitting rooms for the
purpose of measuring or otherwise assisting them, could
easily have been done by other female sales assistants
without causing any difficulty or inconvenience to the
employer. It is also worth noting that in WylievDee & Co
(Menswear) Ltd(1978) a woman was refused employ-
ment in a men’s tailoring establishment in which the
rest of the staff were men because it was considered
inappropriate for her to measure the inside legs of male
customers. An employment tribunal decided that she had
been discriminated against because those measurements
could have been carried out by other male employees.
A further illustrative example from case law is provided
by Lasertop Ltdv Webster(1997) which also reveals
a gap in discrimination law. In that case a man’s com-
plaint of sex discrimination, made when he applied for
an appointment as a sales staff/trainee manager at a
women’s health club and was told that only female staff
would be employed, failed. The employer was entitled to
rely on the defence that being a woman was a ‘GOQ’ for
the post in order to preserve decency and/or privacy.
The EAT ruled that it could not be said that the holding
of the post, with duties that would involve showing
prospective members around the premises, could beundertaken without inconvenience if the post-holder was
a man.
A major point of interest in the case relates to the con-
tention that a GOQ could not be applied because the
relevant aspects of the job, i.e. those involving decency
or privacy such as showing new members around saunas
and changing rooms, could have been carried out by
female staff. This argument failed because the business
was recruiting for start-up staff at the particular branch
and at the time of refusal of the postthere were no
female staff actually in employment there. Section 7(4) of
the SDA 1975 states that the GOQ defence does not
apply where the employer ‘already has’ (male) (female)
employees capable of carrying out the GOQ duties.
There would appear to be a gap in discrimination law in
the sense that if the branch had been in operation the
GOQ reference may not have applied, leaving the male
applicant discriminated against.