The Genuine Occupational Requirement (GOR) defence, which is set out in schedule 9 of the Equality Act 2010, is only available to employers if a claim (or claims) of direct discrimination is being brought against them. For an employer to rely on a GOR exception, they will need to show that, for this role, the three requirements below are satisfied:

• that being of a "particular" sex, race, disability, religion or belief, sexual orientation or age, or being pregnant, or not being trans, married or a civil partner, is an occupational requirement;
• the application of this requirement is a proportionate means of achieving a legitimate aim; and
• the employee does not meet the given requirement.

Examples of successful GORs have been to only employ someone of a particular race to ensure authenticity or realism (for example, when hiring an actor in an historic play) and/or to only employ someone of a specific sex to work in changing rooms reserved for individuals of such sex.

In Donnelly v. PQ, PQ was a disabled woman who hired Mr Donnelly as her carer. PQ, who felt uncomfortable with having a male carer providing her with intimate personal care, decided to extend Mr Donnelly's probationary period by six additional months without explaining to him the rationale behind her decision. Upon learning why his probationary period had been extended, Mr Donnelly resigned and brought various tribunal claims, among them a claim for direct sex discrimination. In response to this claim, PQ argued that the role of her carers providing personal intimate care required them to be of the same sex as herself in the interest of maintaining her privacy and dignity, and that she therefore had a GOR defence. 

The Employment Tribunal found that, whilst maintaining PQ's privacy and dignity could have been a genuine GOR, extending Mr Donnelly's probationary period without explaining the situation to him or trying to find other arrangements (such as having female carers deal with PQ's intimate personal care during Mr Donnelly's non-working shifts) was disproportionate and could have been avoided. 

Whilst this is only a first instance decision (which could therefore be appealed), this is a good reminder for employers that the application of any GOR defence should be a proportionate means of achieving their legitimate aim. Tribunals will make sure that the aim or reason for the discrimination is fairly balanced against the disadvantage suffered by the employee – in other words, tribunals will always consider whether "less discriminatory ways" should have been used instead.