Protected Characteristics

There are occasions in which it is lawful for recruiters and prospective employers to prioritise candidates with a particular protected characteristic when the protected characteristic is a requirement of the role because of the nature of the role. This is known as an occupational requirement. Examples include authenticity for a play, or a show where a certain age or race is required to fulfil the role or, decency/privacy such as hiring certain staff to be in men or women only places such as changing rooms.

Whilst occupational requirements do exist, a recruiter/employer must be able to prove that they are trying to achieve a legitimate aim by imposing this requirement. Recruiters should question the actual need for relying on this justification as failure to do so can expose members to the risk of a discrimination claim. If the occupational requirement is only a small part of a larger role, the first step would be to consider whether someone else who is already employed could fulfil that small part of the role to prevent discrimination in recruiting for the original role.

It is therefore important that upon placing certain requirements for a role, recruiters should challenge themselves and question whether the requirement is really necessary or if there is an ingrained bias that has resulted in a limit to the scope of the requirements for the role and if there is a viable way around this.

Credit: Paul Chamberlain of JMW Solicitors LLP/REC