Can a Sex Discrimination Claim be Brought Against a Residential Home Who Do Not Want Male Employees?

Question

can you bring a sex discrimination claim against a residential home (who primarily deal with old women) who do not want a male employee?

Answer

Discrimination claims are bought on the basis of a protectable characteristic as set out under s.4 Equality Act. The relevant characteristic to this question is sex, which is defined under s.11 of the Act. The issue here is one of direct discrimination as the residential home are specifying that they do not want a male employee. Direct discrimination is set out under s.13 of the Act as “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. The relevant situation here where discrimination is forbidden is that of offering employment to applicants as provided for in s.39 of the Act.

Direct discrimination can never be justified except on the grounds of age, however exemptions are made in the case of occupational requirements subject to schedule 9(1)(a) of the Act where it is stated that “a person 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 it is an occupational requirement” .

As Section 39 employment application is one such provision mentioned in subparagraph 2, a residential care home could theoretically be exempt from such a claim being bought against them as due to the nature of the residents it may be such an occupational requirement. However, such a claim would not automatically be barred and it would be for the residential home to establish this is the case

References

Equality Act 2010