Chapter 8: Exceptions

In this chapter we will cover the following:

• General Exceptions
• Employment Exceptions

The Ordinance sets out a number of exceptions where it is lawful to discriminate on a Protected Ground, some of which are general and the others specific to the different kinds of employment relationships.

This chapter of the guidance sets out in what circumstances those exceptions will apply. 

8.1 General exceptions

The Ordinance provides for 15 general exceptions where it is lawful to discriminate because of a Protected Ground – the titles of which are as follows: 

• Positive action: See Chapter 6.5 Positive action
• Act done under legislative or judicial authority
• Compliance with law of another country
• National security
• Freedom of expression: See Chapter 1.5 Harassment)
• Immigration
• Population Management
• Crown employment, etc
• Protection from harm
• Race: act done pursuant to States' policy
• Charities and non-profit organisations
• Acts of worship
• Religious organisations
• Tribunal members
• Animals

This chapter of the guidance does not seek to cover all of these Exceptions, but it does cover some of the more common ones that are not covered elsewhere. For those that are covered elsewhere within the guidance these can be accessed from the hyperlinks embedded in the list above.

Protection from harm

The Ordinance provides an exception for acts done to protect other people or property from harm in relation to a person who has a disability which gives them an enhanced tendency to commit a criminal offence punishable with imprisonment, if that act is a proportionate means of achieving that aim.  

Example If an employee, as a result of paranoid schizophrenia, had a known tendency towards violence (as assault is a criminal offence) as a result of their disability, then provided the protective action is considered proportionate, this would not be considered to be discrimination arising from a disability. What those steps would be and whether they would be proportionate will obviously depend upon the circumstances, but that might be suspension and dismissal of the employee following a disciplinary procedure.

Proportionality will be assessed in the same way as for objective justification in claims of indirect discrimination. In the context of the example the employer would need to have considered alternatives to dismissal and reasonable adjustments that would avoid the risk.

Crown Employment

This exemption permits statutory restrictions on the employment of foreign nationals in the civil, diplomatic, armed or security and intelligence services and by certain public bodies.

8.2    Employment – Exceptions 

The Ordinance provides for 8 specific exceptions where it is lawful to discriminate in relation to a Protected Ground regarding employment – the titles of which are as follows: 

• Genuine and determining occupational requirement
• Employment for the purposes of an organised religion
• Senior leadership positions: schools with a religious ethos
• Safeguarding (employment)
• Employees and family situations
• Qualifications
• Employment of people with a particular disability
• No requirement to employ person who cannot fulfil essential functions of post

Genuine and determining occupational requirement

The Ordinance provides an exception in relation to employment where an employer is able to demonstrate there is an occupational requirement for a person to have a particular Protected Ground and that requirement is a proportionate means of achieving a legitimate aim. This is known as a “Genuine and determining occupational requirement”. It would not be discrimination to not employ an individual who does not meet that requirement.

Example The need for authenticity or realism might require someone of a particular race or disability for acting roles or modelling jobs. For example, an actor may be playing the part of a person of a particular skin colour, therefore the requirement to have this Protected Ground could be considered to be an occupational requirement. As such it would not be discriminatory to reject an applicant who had a different skin colour on this basis.

Even if the employer is able to demonstrate that they have an occupational requirement, they must still demonstrate that this requirement is a proportionate means of achieving a legitimate aim. This assessment is carried out in the same way as with claims for indirect discrimination, so the employer must first demonstrate that their occupational requirement is designed to achieve a “legitimate aim”. To show that their actions were proportionate an employer does not need to show that they had no alternative course of action; rather, they must demonstrate that the measures taken were reasonably necessary. The actions will not be considered proportionate if the employer could have achieved the same objective through less discriminatory means.  

The exception of genuine occupational requirements, also extends to contract work, a position as partner, an appointment to a personal office or an appointment to a public office, and will also apply to employment agencies and providers of vocational training.

Employment for the purposes of an organised religion

The Ordinance provides an exception in relation to work which is for the purposes of an organised religion where either:

• there is a requirement to be of a particular religion or religious denomination; or 
• with respect of any conduct on the employee's part, it is incompatible with the precepts (i.e. behaviours and thoughts), or with the upholding of the tenets, of the religion or religious denomination in question. 

Within this exception, work is considered to be for the purposes of an organised religion if it involves representing or promoting the religion, including, but not limited to being a minister, celebrant, leader or youth worker of the religion. This exception is similar to the genuine and determining occupational requirement above, but there is no requirement for this to be objectively justified.  

Example A church wants to recruit a new cleaner. The work that they will be undertaking does not require them to be of a particular religion, therefore the exception does not apply.

Senior leadership positions: schools with a religious ethos

The Ordinance provides an exception in relation to employment within schools which have a religious ethos in relation to the appointment, promotion or remuneration of any teacher in a senior leadership position at the school, to persons:

• whose religious opinions are in accordance with the tenets of the religion or the religious denomination of the school;
• who attend religious worship in accordance with those tenets; or
• who give, or are willing to give, religious education at the school in accordance with those tenets.

The Ordinance also provides a further exception in connection with the termination of the employment of any teacher in a senior leadership position at the schools which have a religious ethos. This is related to any conduct on the teacher's part which is incompatible with the precepts (behaviour and thoughts), or with the upholding of the tenets, of the religion or religious denomination of the school.

For the purposes of this exception the term "senior leadership position" means the position of head teacher, deputy head teacher, assistant head teacher or head of religious education in a school.

Safeguarding (employment)

The Ordinance provides an exception in relation to safeguarding in employment. There is no requirement under the Ordinance to recruit, retain in employment or promote a person where the employer believes reasonably that they have committed, or have a tendency to commit, an act which is or may be a criminal offence punishable with imprisonment. This would include, but not limited to, acts of physical or sexual abuse of other persons and the act of viewing indecent images of persons under 18.  Employers should also ensure they are compliant with the Rehabilitation of Offenders (Bailiwick of Guernsey) Law, 2002, see Legislation page Number 13.

There is a requirement within this exception for an employer to have a reasonable belief that someone has committed, or a tendency to commit, criminal offences. Accordingly, for an existing employee, an employer could not merely rely on speculation and gossip, especially for matters that arose outside of work, but would generally be expected to undertake some form of investigation to establish the facts to the extent possible. This is important both from a discrimination perspective and also in the case of a dismissal that this process is fair. In practice, it is recognised if an employee is facing a criminal charge they will often be unable or unwilling to respond to questions that an employer may have, therefore it will be for an employer to determine if they have a reasonable belief.  

Example Following an investigation into an assault a school identifies that one of its members of staff has a condition that amounts to a disability which causes them to have a tendency towards violence, and this condition contributed towards the incident.  Normally where an employer takes disciplinary action in relation to a symptom of a disability this could amount to discrimination arising from a disability.  However, because the individual has a tendency to commit a criminal offence which can be punishable by imprisonment (i.e. assault) then this would fall within the exception, and as such taking disciplinary action would not amount to discrimination.

Employees and family situations

The Ordinance states that it is not discrimination to:

• Grant an employee's request for flexible working,
• Provide benefits to those employees with care responsibilities for family members, including but not limited to parents of a child and those with the protected ground of carer status, and
• Provide benefits to those employees for family situations, including but not limited to paid leave in the case of the illness of a family member.

Qualifications

The Ordinance provides an exception in relation to claims of race discrimination, where an employer requires a person to hold a certain qualification in relation to a role where:

• The qualification is reasonably necessary for the role, and
• The employer requires, or would require, the same qualification of persons who do not share the same racial group.

This exception might apply in relation to a requirement to have a degree from a particular country such as the UK. Whilst this might amount to indirect discrimination on the grounds of race, provided the qualification is reasonably necessary for the role and it applies to everyone, then it would fall within the exception.

The exception also applies to providers of vocational training who require a person to hold a certain qualification in relation to training which they are undertaking or are applying to undertake. Again, provided that the qualification is reasonably necessary, and it would apply to everyone, it would fall within the exception.

Employment of people with a particular disability

The Ordinance provides an exception in relation to employers who provide supported employment opportunities for persons with a disability, and not to those who do not have that disability. This exception is currently limited to two employers, Grow Ltd and the Guernsey Employment Trust LBG, but can be supplemented by further regulations. 

No requirement to employ person who cannot fulfil essential functions of post

The Ordinance provides an exception in relation to employers that there is no requirement to offer employment, promote or retain in employment, or offer training or any other benefit associated with employment to a person in circumstances where they cannot fulfil one or more of the essential functions of the post.

This exception is subject to the duty of reasonable adjustments. So, if someone could fulfil the essential functions of the post with reasonable adjustments, then the exception will not apply.

Example: Following an injury at work a crane driver injures his spine and is unable to drive. As they are unable to manoeuvre the crane, they cannot fulfil an essential function of the post. However, before dismissing the employee, the employer would need to consider whether there are any potential reasonable adjustments that could be made such as redeployment to an administrative position.