Draft Employment Equality (Sexual Orientation) Regulations 2003

Explanatory Memorandum

Regulation 7
Exception for genuine occupational requirement etc

22. Regulation 7(1) and (2) allows an employer, when recruiting for a post, to treat job applicants differently on grounds of sexual orientation if possessing a particular sexual orientation is a genuine occupational requirement (“GOR”) for that post. An employer may also rely on this exception when promoting, transferring or training persons for a post, and when dismissing persons from a post, where a GOR applies in respect of that post.

23. Regulation 7(1) and (2) follows the wording of Article 4.1 of the Directive, as do the draft Race Relations Act 1976 (Amendment) Regulations. However, regulation 7(2) does not copy out the reference in Article 4.1 to “the objective [being] legitimate”. This is because if an occupational requirement is established as a genuine one in order to carry out the job in question, then it also pursues a legitimate objective; a requirement which pursues an illegitimate objective would not constitute a genuine occupational requirement.

24. Regulation 7(3) provides a further exception in relation to employment for purposes of an organised religion, which is similar to section 19 of the SDA. Where employment is for purposes of an organised religion, it allows the employer to apply a requirement related to sexual orientation so as to comply with the doctrines of the religion or avoid conflicting with followers’ religious convictions. This applies to employment in a church or temple, for example, but does not necessarily apply to any employment which is (or is claimed to be) of a religious character. Regulation 7(3) is consistent with Article 4.1 of the Directive, although it does not copy out its wording. This is because a requirement which meets the criteria defined in regulation 7(3) is necessarily a genuine and determining occupational requirement which is applied proportionately, within the meaning of Article 4.1. In this context, recital (24) of the preamble to the Directive refers to Declaration No.11 annexed to the Amsterdam Treaty recognising the status under national law of churches and religious associations.