Equality Act 2010 - Sex Discrimination in Childcare

[nannynick]

Can anyone help - I am trying to find out if there are any exemptions which would enable a parent to advertise a childcare job whereby they are able to state they want someone of a specific gender.

I can't find any exemptions which seem to me to permit it.

I can think of a situation whereby it may be desirable - A disabled child who has reached puberty who still requires a high level of personal care (such as dealing with disposing of bodily waste) - would that be covered under any exemption?

That's Age not Gender though isn't it. Also hasn't that been superseded by the Equality Act 2010?

What applies to adults may well not apply to children... can you point me towards where it says in legislation that personal care is exempted?

The exemption is contained within what must be some of the most impenatrable drafting I have seen - the Equality Act 2010. And no, before you ask the term 'Occupational Requirement' is not defined within the Act, it would fall to the employer to justify that being of a specific gender was a proportionate requirement in order to achieve a legitimate aim. It seems likely that it would be relatively easy to argue this in relation to personal care for a disabled adult, and also where live-in staff are concerned, but relatively hard to argue that nice young German girls make the best daily nannies so that's what you will specify in the advert.

S39 Employees and applicants
__(1)An employer (A) must not discriminate against a person (B)?
(a)in the arrangements A makes for deciding to whom to offer employment;

...

Schedule 9 Part 1

1(1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work?
__(a) it is an occupational requirement,
__(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and
__(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2) The provisions are?(a)section 39(1)(a) or (c) or (2)(b) or (c);

...

(4) In the case of a requirement to be of a particular sex, sub-paragraph (1) has effect as if in paragraph (c), the words from ?(or? to the end were omitted.

So does that mean that a parent advertising a nanny job whereby they state they want a female nanny is lawful, or isn't?

Perhaps it would depend on the specific circumstances of the job - but if say the child was 2 years old and the personal care level was that of a normal child, so chaning a nappy, then would it be unlikely to be unlawful to specify gender of nanny?

What about advertising rules, if it were exempt, would an exemption declaration be needed on the advert?

By the same token are ads for manny's legal? Or could one argue that being a male influence for, say, children of a lone mother is an occupational requirement?

Could the occupational requirement not be related tonthe children but to another aspect of the job e.g. living in or working with a newly postnatal mother? Although there are male MWs so maybe that wouldn't count.

It would work both ways in my view.

Question is though, is it still illegal or has the Eqality Act now made it possible to discriminate on grounds of genda again, by saying it's an occupational requirement?

This is very recent legislation and as far as I am aware has not yet been tested in court, however my personal thoughts on some of the points raised:

Absolutely it would depend on the specific circumstances of the job: rather than previous legislation which used blanket exemptions e.g. for domestic staff (although I beleive this was actually removed in 1987), it falls to a claimant to persuade the court that the discrimination was not reasonable in the circumstances (more specifically was not a "proportionate means of achieving a legitimate aim").

In general, I cannot see what legitimate aim there would be in requiring the carer for a 2 year old child to be a specific gender, but as frakk points out it is not just the nature of the work but also its context that may be taken into account and so I would imagine that legitimate aims may well exist in both the situations of a lone parent requiring infuluence from a carer of the opposite sex and in the domestic arrangements of live-in staff. In particular where breastfeeding is a factor I would imagine that a requirement for a maternity helper to be female would always be justified.

I would just advertise for a nanny/live in helper - whatever - and just give the job to whoever you felt was most appropriate. If you felt a female is more appropriate so be it. I would not specify any gender. Why leave yourself open to legal action.
Mine is the simplistic view