A male Period Officer: Can you ever hire based on a protected characteristic?
Posted on 22nd August 2023 at 15:45
There has been controversy over the decision to appoint a man to the role of Period Dignity Officer.
The role included leading a campaign across schools, colleges and the wider community to promote the new legal right to free period products in public settings, as well as ensuring funding is appropriately allocated. He would also have been involved in discussing issues around menopause. Many people feel that the role should have been open only to women, who would have first hand experience of the issues involved.
But sex is a protected characteristic under the Equality Act - wouldn’t it be discrimination to exclude men from the role?
The Equality Act 2010
The Equality Act 2010 makes it unlawful to treat somebody less favourably because of a protected characteristic. But Schedule 9 says that employers can require employees to have a particular protected characteristic if:
it is an occupational requirement and
the requirement is proportionate to achieve a legitimate aim
This means it is legal to recruit based on the employee being of a particular sex, race, disability, religion or belief, sexual orientation or age, or not being a transsexual person, married or a civil partner where it is necessary for the role.
What is an occupational requirement?
The notes on the legislation state that the requirement must be ‘crucial to the post’, and not just an important factor. So, is first hand experience of the issues involved essential to do the job or just preferable to an academic understanding?
The legislative notes suggest a number of examples where an exemption to the Equality Act would be valid. These include instances where the target audience would not take up services offered or where distress could be caused. So in this case, would teenage girls feel uncomfortable talking to a man about periods, and instead simply not use an otherwise helpful service? Would a teenage girl suffering from a condition causing heavy and painful periods suffer further from dealing with a man rather than a woman?
Often an argument can be made both ways, and there will be no definite answer until a tribunal decides on the matter (even then, decisions may be overturned on appeal). This makes it difficult for employers to be sure where they stand legally, and some may choose to err on the side of caution. A specialist employment solicitor will be able to advise on the strength of the arguments either way, to help you make informed decisions about whether to rely on the exemption.
When is it proportionate?
Even where you have a legitimate aim, that aim must justify the discrimination. For example, if it was considered that teenage girls would not engage with a male in the role then the role would be largely pointless. So, the benefit of the exemption is that the role will be more successful and benefit more people. Again, this involves some judgement, and won’t always have a clear answer without tribunal intervention. However, a solicitor can help you to understand what a tribunal will be looking for in making such decisions.
It is also important to consider ways of achieving the aim that are not discriminatory, or at least less so. For example, where the role is part of a team, the employer could consider targets for the number of men and women on each team, rather than requiring all roles to be filled by women.
We recommend keeping records to prove you have fully thought the exclusion through. This can also help you to document the reasons why any alternatives are not appropriate.
What was the outcome of the Period Dignity Officer case?
The council discontinued the role due to “abuse,” ending Mr Grant’s employment but not replacing him. Mr Grant brought a claim against his former employers for sex discrimination, but the dispute was settled outside of the tribunal and no details were made public. Unfortunately, this means the tribunal did not get to consider the case or clarify the issues of dispute.
Was Mr Grant discriminated against?
The case could have focused on whether Mr Grant was dismissed due to his sex, or whether there was a valid reason such as redundancy.
Does schedule 9 apply to this case?
The case might have focused on whether the role could be done by a man, clarifying how the tribunal interprets necessity and proportionality.
Was it too late to rely on Schedule 9
The claimant might have accepted that schedule 9 could apply but argued that this should have been decided before recruiting. In this case, the decision might have clarified whether schedule 9 only applies to recruitment or whether it can be used to remove somebody from a role.
What does this mean for employers?
If you have a role you feel requires somebody with a specific protected characteristic, you may be able to recruit on this basis. To be within the law, you must be sure that the characteristic is necessary to the role, and that the benefit justifies discriminating. These decision will depend on circumstances unique to the situation.
This case should not make employers scared to rely on schedule 9 when necessary. If the case does depend on arguments around schedule 9, then it might benefit employers by providing more clarity on the law. However, it does demonstrate the importance of planning ahead, considering any such requirements before starting to recruit, and having confidence in the legality of your decisions.
Don’t wait for a public backlash before taking action. We recommend seeking specialist legal advice before advertising the role, to be sure that you are acting within the law. A solicitor can advise you of what factors to consider and whether your arguments are legally persuasive, as well as helping you to prove that you have considered the possible alternatives fully.
Get in touch for advice or read more in our Employers guide to discrimination in the workplace.
This article was updated in August 2023 to discuss Jason Grant's legal claim against his former employers. It was updated again in January 2024 to reflect that the claim had been settled outside of the tribunal.
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