The Equality Act 2010 protects everyone in Britain from discrimination against the 9 following protected characteristics:

  1. Age
  2. Disability
  3. Gender Reassignment
  4. Marriage/Civil Partnership
  5. Pregnancy/Maternity
  6. Race
  7. Religion or Belief
  8. Sex
  9. Sexual Orientation

There are four types of discrimination, direct, indirect, harassment and victimisation.

Direct: treating someone less favourably because of a protected characteristic. For example, not appointing someone to a role because you assume they are not experienced enough due to their age.

Indirect: applying a policy or procedure which indirectly disadvantages one group more than another. For example, setting a blanket policy not to allow part-time working as this may disproportionately impact women who are more likely to have child-care responsibility.

Harassment: treatment which has the intention or result of creating hostile, degrading, humiliating or offensive environment which violates an individual’s dignity. For example, making derogatory jokes or remarks about someone with a disability under the  guise of “banter”.

Victimisation: treating someone less favourably because they have made a complaint (or supported someone who has made a complaint) under the protection of the Equality Act. For example, not allowing a black colleague to apply for promotion because they complained about discrimination in the workplace and are now perceived to be a “trouble-maker”.

Occupational Requirements

There may be occasions when it is necessary and appropriate to discriminate, for example requiring a role to be filled by an individual who has (or does not have) a protected characteristic. For the purposes of this guidance, we will focus on religious belief, specifically the requirement for an individual to be a practicing Christian.

The Equality Act 2010 Schedule 9 Part 1, subsection 3 states that discrimination may be lawful if:

“A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work:

(a) it is an occupational requirement,

(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and

(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).”

The Explanatory Note further specifies:

“This paragraph allows an employer with an ethos based on religion or belief to discriminate in relation to work by applying a requirement to be of a particular religion or belief, but only if, having regard to that ethos:

  • being of that religion or belief is a requirement for the work (this requirement must not be a sham or pretext); and
  • applying the requirement is proportionate so as to achieve a legitimate aim.

It is for an employer to show that it has an ethos based on religion or belief by reference to such evidence as the organisation’s founding constitution.


Religious organisation may wish to restrict applicants for the post of head of its organisation to those people that adhere to that faith. This is because to represent the views of that organisation accurately it is felt that the person in charge of that organisation must have an in-depth understanding of the religion’s doctrines. This type of discrimination could be lawful. However, other posts that do not require this kind of in-depth understanding, such as administrative posts, should be open to all people regardless of their religion or belief.”

So, in order for an Occupational Requirement to exist it must meet all three of the following criteria:

  • be crucial to the post, and not just one of several important factors, and
  • relate to the nature of the job, and
  • be ‘a proportionate means of achieving a legitimate aim’. If there is any reasonable and less discriminatory way of achieving the same aim, it is unlikely the employer could claim an occupational requirement.

In attempting to demonstrate ‘a proportionate means of achieving a legitimate aim’, an employer must show:

  • there is a legitimate aim such as a good business reason, but employers should note that cost alone is unlikely to be considered sufficient, and
  • the actions are proportionate, appropriate, and necessary.

Both points must apply, not just one of them. The process of determining whether discrimination is justified involves weighing up the employer’s need against the discriminatory effect on the group of the same religion or belief. The more discriminatory the effect, the more difficult it will be to justify. It can be very difficult to justify discrimination where the same aim could have been achieved without discrimination. The employer should look for and explore any alternatives.

Make sure you consider roles on an individual basis and don’t be tempted to apply criteria in a blanket form across either an organisation or a specific department or function. Look at the actual role you are recruiting and consider it carefully before specifying. Each time you recruit, review the situation as roles and responsibilities and business needs evolve and an exception that was justifiable once may not necessarily be the next time you are looking for a new recruit.

Questions to think about:

  • Is the requirement to be a Christian inherent in the duties of the post?

(Think about the day-to-day responsibilities of the role, are they involved in ministry, religious instruction or daily pastoral care?)

  • Is the religious requirement of the role just one of several important factors?

(Think about the essential criteria, required experience, knowledge and competencies – how many of these relate to religious belief?)

  • How senior is the role?

(The context of the role and the work of the organisation may require the senior leadership represent the organisation externally)

  • Could the role be reorganised to not require the religious requirement?

(If duties could be rearranged or redistributed to remove the occupational requirement, they should be)

  • Before applying an OR, always contact HR for advice and guidance.