Advice by Peninsula Associate Director of Advisory Kate Palmer
Headlines in New Zealand have recently focused on the firing of the Farmers Auckland Christmas parade’s Santa after he commented that females could not be hired for the role of Santa. Whilst New Zealand has laws which outlaw discrimination on the grounds of sex, how would a similar issue be considered in the UK?
The Equality Act 2010 outlaws less favourable treatment on the grounds of nine protected characteristics, including disability, religion, sexual orientation and sex. This means that an employer cannot make their decision of whether to make an offer of employment, or not, based on the applicant’s gender. Instead, the decision needs to be made on objective factors, such as whether the job candidate has sufficient previous experience or the required qualifications to carry out the role.
Care must also be taken to avoid inferring that a discriminatory decision will be made through the use of job adverts, e.g. rather than having gender-specific language such as “Waitresses Wanted”, ensure advertisements are gender-neutral to avoid the risk of a male applicant claiming his refusal to be offered the job was because of his gender.
There are exceptions to this rule, however, where the employer can require an employee to be of a particular gender. This is where they can show they have a ‘general occupational requirement’. This looks at whether it is a crucial requirement for the person performing the particular job role to be of a certain gender, looking at the nature or the context of the role. The requirement must be a proportionate means of achieving a legitimate aim, such as an aim of privacy and decency where a female employee is required for a role working within as a women’s domestic abuse counsellor.
Employers looking to fill particular roles concerning acting and performance skills, such as Santa, can rely on the legitimate aim of authenticity or realism to specify that they require a particular gender to carry out a role which is associated with being a particular sex. There is nothing preventing entertainment employers from hiring a female to carry out this role, however, and if a female applicant shows they have better experience and skills to perform the job then they may consider bucking the traditional norm.