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Case 5: Genuine Occupational Requirement

CarerLouisa‚ who is aged 50‚ applied to an organisation that provides carers to work with disabled people in their own homes. 

Her application was rejected on the grounds that the clients the organisation needs carers for are students in their twenties‚ and they are looking for carers of a similar age to the clients‚ who they believe will fit in better with the students’ lifestyles.

The employer explains that it is the clients’ own preference to have younger carers and that they are only trying to meet the clients’ requests. They are looking for someone aged under 35.

1. Is there a potential age discrimination case?

What type of age discrimination?

This would amount to direct age discrimination – as Louisa is being treated less favourably than someone aged under 35 would be‚ on grounds of her age.  She has suffered a detriment in that her application has been refused.

Is the discrimination unlawful?

In this case the employer may try to argue either that the Genuine Occupational Requirement (GOR) exception applies‚ and/or that the treatment was objectively justified (see pages 19 and 20 of ‘Making a Case Against Age Discrimination’). 

It should be argued that client preference does not result in there being a genuine and determining requirement that the job be done by someone under age 35‚ someone older than this would be able to do the work.
 
For the employer to show that they were objectively justified in rejecting Louisa’s application they would have to show that it was a proportionate means of achieving a legitimate aim.  They may try to argue that accommodating client preference is a business need and amounts to a legitimate aim in this case.  The tribunal would have to decide whether this could amount to a legitimate aim.

This could be rebutted by arguing that the aim is tainted by age discrimination itself‚ and cannot therefore be legitimate.

2. Beginning action on a case

Grievance procedure

Louisa is not required to follow the grievance procedure before lodging a tribunal claim‚ as she is not an employee of the organisation.

Questionnaire procedure

Louisa could use the questionnaire procedure to obtain evidence of the employer’s reason for rejecting her application‚ and to find out whether they intend to rely on an argument that a GOR applies‚ or that the treatment was objectively justified. 

The standard questionnaire form includes the question ‘Do you accept that your treatment of me was unlawful discrimination?’ and asks; if not‚ why not?  This will give the employer the chance to put forward any arguments of objective justification or that a GOR applies. If they do not put these arguments forward at this stage a tribunal is less likely to accept the arguments if they are raised for the first time at a later stage.  In addition‚ the following specific questions could be asked:

  • Why was Louisa’s application rejected?
  • Who made the decision to reject the application and when?
  • Was a decision made not to consider any applicants over age 35 for this position?
  • If the reason for the rejection is discriminatory on grounds of age‚ is there an objective justification for it?  If so‚ please state what legitimate aim is being pursued.
  • Provide details of the age of each applicant for the position and state whether their application was successful or at what stage in the recruitment process they were rejected.
  • Do you have an equal opportunities policy? If so‚ please provide a copy.
  • Provide details of any age equality training undertaken by the people responsible for selection decisions for this position.
  • Provide a copy of the job description and person specification for this position.
  • Provide copies of all notes relating to the selection process for this position.

3. Taking a case

Time limits

The claim must be submitted within three months of the date the discrimination took place‚ i.e. the date Louisa’s application was rejected. It is advisable to be cautious when calculating this date‚ and work from the earliest date that could be said to be the date of rejection.

Submitting the ET1

The claim must be submitted to the tribunal on form ET1.  The form should include full details of what was said to Louisa‚ who said it‚ and when it was said.  The nature of the claim must be clear – that the rejection of the application amounted to unlawful direct age discrimination.

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