Who: Department for Education
When: February/March 2014
Law stated as at: 26 March 2014
The Madani Boys School, a Muslim state school in Leicester, published an advert through the outsourcing company Capita for a “Male Science Teacher”. A similar advert had previously been placed by the school for a Male ICT Technician. The Madani Girls School (the sister school to the Madani Boys School) has frequently advertised for ‘female only’ staff (including Headteacher, Head of Life Skills, Cover Supervisor and Teaching Assistant).
The Equality Act 2010 (the “Act”) precludes discrimination in employment (including in recruitment) on the basis of sex except in limited circumstances.
The Act sets out a ‘general’ exception where an “occupational requirement” can be demonstrated and applying that occupational requirement is a “proportionate means of achieving a legitimate aim”.
The explanatory notes to the Act make it clear that the general exception applies in limited circumstances; the occupational requirement must be “crucial to the post, and not merely one of several important factors”. The explanatory notes give an example of considerations of privacy or decency which may require a public changing room or lavatory attendant to be of the same sex as those using the facilities. Requiring a teacher of a particular sex would not fall into this exception.
Nor could the schools cite the ‘organised religion’ exception, which applies to ” a very narrow range of employment: ministers of religion and a small number of lay posts, including those that exist to promote and represent religion.” An example would be a requirement that a Catholic priest be a man and unmarried.
Moreover, the schools could not rely on the ‘religious ethos’ exception which is available to an employer with an ethos based on religion or belief who, in certain circumstances, may demonstrate that being of a particular religion or belief is an occupational requirement. This would apply if a religious organisation wishes to restrict applicants for the post of head of its organisation to those people that adhere to that faith. The schools are not religious organisations, nor does this exception mention the ability to discriminate on grounds of sex.
Schools with a religious ethos are already permitted to discriminate against teachers who do not share the faith of the school. Exceptions to equality legislation that permit single-sex schools to admit pupils of only one sex apply only to admissions, not to the appointment of teachers.
The Department for Education (the “DfE”) stated that there “did not appear to be any justification as to why these post holders would need to be of a particular sex” and asked Leicester City Council to investigate the matter. After doing so the Local Authority advised the DfE that the schools would ensure these advertisements were withdrawn. A spokeswoman for the City Council confirmed the advert did not comply with the Act, saying: “Exceptions to the 2010 Equalities Act do not apply in this instance.”
Why this matters:
If employers wish to advertise for an employee of a specific sex, the employer must first seriously consider:
1. Is it crucial to the post that the role should be carried out by a male/female employee only?
2. Could a solution be found so that a male or a female employee could carry out the role?
The employer must bear in mind that the burden of showing that this narrow exception applies is on those seeking to rely on it. In cases where an exception does not apply to the advertisement, the employer opens themselves up to a possible discrimination claim at the Employment Tribunal. Compensation can be awarded for financial loss (no upper limit on compensation) and injury to feelings (tariff ranges from £600 to £30,000 depending on the seriousness of the discrimination).