This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
When can an employer legally specify a protected characteristic for a job? Learn the criteria for lawful occupational requirements and how these exceptions are applied in practice.
Employment law in England and Wales generally prohibits discrimination on the basis of protected characteristics such as age, disability, race, religion or belief, sex, sexual orientation and others under the Equality Act 2010. However, there are narrowly defined circumstances in which employers may lawfully require a job applicant or employee to have (or sometimes not to have) a particular protected characteristic. These are known as occupational requirements. This article explains what occupational requirements are, the legal criteria that must be met for them to be lawful, practical examples, common pitfalls and procedural considerations for both employers and employees.
What Are Occupational Requirements?
An occupational requirement is an exception within the Equality Act 2010 that allows an employer to impose requirements related to a protected characteristic where that characteristic is essential to the job because of the nature or context of the work. If an employer can satisfy the statutory test, then treating someone less favourably because they do not meet that requirement will not amount to unlawful discrimination. This exception applies most commonly in job recruitment, selection, promotion, terms of employment and dismissal decisions.
Legal Framework: Equality Act 2010
Statutory Basis
The occupational requirement exception is found in Schedule 9 Part 1 of the Equality Act 2010. Under this provision, an employer will not contravene the statutory prohibition on direct discrimination by applying a requirement related to a protected characteristic if:
- The characteristic is genuinely an occupational requirement for the job;
- Applying the requirement is a proportionate means of achieving a legitimate aim; and
- The individual fails to meet the requirement or the employer has reasonable grounds to be unconvinced that they meet it.
The test goes beyond simply saying the characteristic “would be useful” - it must be essential to the job's effective performance or the legitimate aims of the employer.
Occupational Requirements vs. Objective Justification
The occupational requirement exception should not be confused with the objective justification defence used for indirect discrimination or age discrimination. Objective justification allows an employer to argue that a practice with a discriminatory effect is a proportionate means of achieving a legitimate aim such as health and safety or operational needs. Occupational requirements are a specific statutory exception that must be established separately.
Key Criteria for Lawful Occupational Requirements
For an occupational requirement to be valid and lawful, the following criteria must be satisfied:
1. The requirement must be genuinely an occupational requirement.
This means the protected characteristic must relate directly to the core tasks, responsibilities or context of the job. It cannot be an arbitrary preference or a recruitment policy aiming for diversity for its own sake.
2. The requirement must be a proportionate means of achieving a legitimate aim.
A legitimate aim could include ensuring the authenticity or effectiveness of a role, preserving a religious ethos, safeguarding privacy, or complying with another legal obligation. Employers must demonstrate that the discriminatory impact of the requirement is justified because there is no less discriminatory way to achieve the same aim.
3. The individual must not meet the requirement (or the employer must reasonably believe this to be the case).
This ensures that the exception is applied only to those who genuinely do not possess the required characteristic.
These criteria are cumulative; failure to meet any one of them means the exception cannot be relied on and the discriminatory act may be unlawful.
Practical Examples of Occupational Requirements
Religious Organisations and Roles
A religious charity recruiting a missionary or spiritual leader may lawfully specify that candidates must belong to a particular religion. The requirement reflects the nature or context of the role, and if objectively justified, is an occupational requirement.
Authenticity in Performing Arts or Media
An employer advertising for an actor to play a character of a specific racial or religious background may lawfully stipulate that the actor must have that characteristic where it is intrinsic to the role's authenticity.
Privacy or Personal Service Roles
A care agency providing intimate care to clients who express a clear preference (for religious or cultural reasons) for care from someone of a particular sex may justify specifying the sex of the caregiver. In such cases, the occupational requirement is tailored to legitimate privacy needs and can be proportionate if genuine.
Safety and Legal Compliance
In rare cases, age or other characteristics may be a lawful occupational requirement due to statutory age limits or safety regulations that make it unlawful or unsafe for a person outside a particular age range to perform the role.
Roles and Limitations
Scope of Application
The exception applies to direct discrimination only. That means an employer cannot use an occupational requirement to defend claims of indirect discrimination, harassment or victimisation. Occupational requirements must be justified specifically under Schedule 9 rather than the general justification tests.
The exception also does not apply automatically for all protected characteristics; different types of work and roles will require careful justification to show that the requirement is essential rather than merely desirable.
Proportionate Means and Legitimate Aims
Even if a job genuinely requires a particular characteristic, employers must still show that the requirement is proportionate and directed at a legitimate aim. This may require documented evidence of role duties, organisational ethos, operational needs or statutory compliance. Employers should avoid blanket policies that always apply an occupational requirement regardless of context.
Review and Documentation
Occupational requirements should be reviewed regularly, especially when roles evolve. Employers who apply a requirement once without revisiting it may find that circumstances have changed and that the original justification no longer applies. Well‑documented evidence and objective analysis help demonstrate lawful application if challenged.
Making or Contesting a Claim
Time Limits and Tribunals
Employees or applicants who believe they have been unlawfully discriminated against because of an occupational requirement that does not meet the legal criteria may bring a claim to an Employment Tribunal. For most direct discrimination claims, the time limit is three months less one day from the act complained of, and claimants must normally participate in Acas Early Conciliation before filing.
Evidence and Burden of Proof
Tribunals assess whether an occupational requirement genuinely applied and whether it was a proportionate means of achieving a legitimate aim. This may involve examining job descriptions, organisational constitutions (e.g. for religious bodies), operational needs, recruitment records and comparative evidence. The employer bears the evidential burden to justify the occupational requirement.
Common Questions
Can an occupational requirement be based on sex?
Yes, in appropriate circumstances such as roles requiring privacy considerations or authenticity in representation, but the employer must satisfy the proportionality and legitimate aim criteria. Updated guidance emphasises the need for clarity on legal sex definitions when specifying sex as an occupational requirement.
Is this the same as positive action?
No. Positive action (allowed under different sections of the Equality Act) permits supportive measures for underrepresented groups but does not allow preferential treatment unless candidates are of equal merit. Occupational requirements are a separate statutory exception to direct discrimination.
Does it apply to internal promotions?
Yes. An employer may use an occupational requirement in internal promotion if the statutory criteria are met. For example, if a senior leadership role in a faith‑based organisation requires religious adherence.
Key Takeaways
An occupational requirement is a lawful exception to the general prohibition on discrimination in employment under the Equality Act 2010, permitting employers in England and Wales to require a job applicant or employee to have a specific protected characteristic only where it is essential to the job and proportionate to achieving a legitimate aim. Employers must carefully evaluate, document and justify such requirements, avoid applying them indiscriminately, and be prepared to demonstrate that there is no less discriminatory way to achieve the underlying aim. Individuals who believe an employer has misapplied an occupational requirement may pursue a claim in the Employment Tribunal within statutory time limits, supported by evidence showing that the requirement was not genuinely necessary or proportionate.
