Draft Employment Equality (Religion or Belief) Regulations 2003

Explanatory Memorandum May 2003

Regulation 7
Exception for genuine occupational requirement

22. Regulation 7 allows an employer, when recruiting for a post, to treat job applicants differently on grounds of religion or belief if possessing a particular religion or belief 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. The exception in regulation 7(1) and (2) – what may be called “the general GOR” – applies whether or not the employer has an ethos based on religion or belief. But a further exception in regulation 7(3) – what may be called “the religious organisations GOR” – is available to an employer who does have such an ethos. The religious organisations GOR is based closely on the general GOR, since both are intended to operate in a similar way. But the religious organisations GOR, unlike the general GOR, does not have to be a determining occupational requirement. This means that the religious organisations GOR is slightly broader than the general GOR, because the employer is not required to show that religion or belief is a determining (i.e. decisive) factor in selection for the post in question. However, the employer must still show that the religion or belief is a requirement, and not just one of many relevant factors.

25. It will be for the employer to show that he has an ethos based on religion or belief; and that, having regard to that ethos, being of a particular religion or belief is a GOR for the job. The wording of regulation 7(3) follows that in Article 4.2 of the Directive.