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An employment tribunal has held in Donnelly v PQ that an employer could not rely on its general occupational requirement defence to a sex discrimination claim.

The claimant was employed as a carer by a physically disabled woman (PQ) who required intimate personal care.  During the claimant's probationary period, PQ decided that she was not comfortable with him providing intimate care because he was a man. PQ extended the probationary period as a result but did not tell the Claimant the real reason for this. When the Claimant discovered the reason, he resigned.

The claimant brought a claim for direct sex discrimination and PQ sought to rely on the general occupational requirement (OR) defence set out in the Equality Act 2010. This is available where, having regard to the nature or context of the work, holding a particular protected characteristic (or not holding it) is an OR. The application of the requirement must be a proportionate means of achieving a legitimate aim.

The tribunal held that PQ had a legitimate aim of privacy and dignity, but that her means of achieving that aim in extending the claimant's probationary period were not proportionate. She could have preserved her privacy and dignity in less discriminatory ways. If she had been open about her personal need to build up a relationship of sufficient trust for the claimant to provide intimate personal care to her, the extension of the probationary period could have been avoided.  Alternatives could have been suggested, such as the claimant overlapping shifts with female carers. However, the tribunal found that PQ could have relied on the general OR defence, in principle, had she not unlawfully extended the claimant's probationary period.

Take note: It will be possible for a person with caring requirements to advertise for a person of a specific sex to care for them if it can be shown that having a carer of that sex is a proportionate means of meeting a legitimate aim.  This much is made clear by EHRC guidance which confirms that such advertising will be lawful if the care is personal and intimate, affects privacy and decency and there is a reasonable objection to being attended by someone of the opposite sex.  By extension, it was open to PQ in this case to decide that she was not comfortable employing the claimant to provide personal care because he was a man. However, what was not lawful was taking a decision to extend his probationary period without telling him the real reason behind it.