As promised in Issue 34 of the Bottom Line Express, the Masterclass in this Issue takes a look at disability discrimination and pre-employment health questions under the Equality Act 2010. These provisions are expected to come into force in October 2010.

DISABILITY DISCRIMINATION

Change to definition of disability

Generally speaking, to receive protection from disability discrimination, employees must show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Currently, an impairment is regarded as having such an effect only if it affects one of 8 specified capacities, namely: mobility; manual dexterity; physical coordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; and perception of the risk of physical danger.

The Equality Act 2010 will remove this list of capacities, enabling tribunals to make common-sense decisions about whether or not particular impairments have a substantial effect on day-to-day activities. This is expected to make it easier to establish that an employee has difficulty carrying out their day-to-day activities, and therefore that they come under the definition of ‘disabled person’.

New form of disability discrimination

The Act will introduce a new form of disability discrimination – discrimination “arising from” a disability instead of “disability-related” discrimination. The significant difference is that the new provisions will not require the disabled person to establish that his or her treatment is less favourable than that experienced by an appropriate comparator. It will simply require that the employee has been treated "unfavourably because of something arising in consequence" of his or her disability. This change is expected to make it much easier for employees to bring successful tribunal claims. For this type of discrimination to occur, the employer has to know, that the employee has the disability in question. Employers will be able to defend unfavourable treatment if they can establish objective justification for it.

Government guidance gives the example of a disabled employee who, because of his or her disability, has to take more time off than other employees. If the employer treats the employee unfavourably because of this, this will be unfavourable treatment because of something – the absence – arising in consequence of the employee’s disability. Unless the employer can objectively justify this treatment, it would amount to unlawful disability discrimination.

PRE EMPLOYMENT HEALTH QUESTIONS

Except in very restricted circumstances or for very restricted purposes, the Act aims to prevent employers from asking any job applicant about their health or any disability before the person has been:

• offered a job either outright or on conditions (such as ‘subject to satisfactory references/health check’), or

• included in a pool of successful candidates to be offered a job when a position becomes available (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role but doesn’t want to recruit separately for each one).

This means employers should avoid asking such questions on application forms or during interviews. This includes sending a health questionnaire for applicants to fill in before offering employment. Questions relating to previous sickness absence will be regarded as questions that relate to health or disability.

Nor should health questions be asked by someone else on an employer’s behalf (such as a recruitment agency). Consequently, employers should not refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made except in very limited circumstances, described below. Employers will also need to avoid asking health questions of someone other than the applicant – so a request for a reference sent to the applicant’s former employer before a job offer is made must also avoid asking questions that contravene the provision.

This effectively means the end of standard pre-employment health questionnaires.

The Act aims to ensure that all job applicants are considered properly to see if they can do the job in question, and not ruled out merely because of issues related to or arising from their health or disability, such as sickness absence, which may have no bearing on whether they can do the job now.

Employers are free to ask health questions after a job offer has been made or the person has been included in a group of successful candidates. At that stage, employers can make sure that someone’s health or disability would not prevent them from doing the job. But, if a disability is revealed, employers are obliged to consider whether there are reasonable adjustments that would enable the individual to do the job.

What happens if an employer asks questions about health or disability?

A job applicant can bring a claim at Tribunal if an employer:

• asks health or disability-related questions of a kind that are not permissible; and/or

• the applicant believes there has been unlawful discrimination as a result of the information that they gave (or failed to give) when answering such questions.

An employer does not commit an act of disability discrimination merely by asking about a job applicant’s health, but the employer’s conduct with regards to information given in response may lead a tribunal to conclude that the employer has committed a discriminatory act. In these circumstances, the burden of proof will shift to the employer to show that no discrimination took place. For example, the employer may be able to show that the applicant was not selected as other candidates had better qualifications.

The Equality and Human Rights Commission can take legal action (in County Court or Sheriff Court) to challenge an employer in a wider case where no individual was personally affected.

In what circumstances will pre employment health questions still be permissible?

Employers can ask pre-employment questions about health or disability in so far as asking the question is necessary:

• in order to find out if any applicant needs reasonable adjustments for the recruitment process, such as for an assessment or an interview. For example: an application form states: ‘Please contact us if you need the application form in an alternative format or if you need any adjustments for the interview’.

• to find out if a person (whether they are a disabled person or not) can take part in an assessment as part of the recruitment process, including questions about reasonable adjustments for this purpose. For example: an employer is recruiting play workers for an outdoor activity centre and wants to hold a practical test for applicants as part of the recruitment process. It asks a question about health in order to ensure that applicants who are not able to undertake the test (for example, because they are pregnant or have an injury) are not required to take the test.

• for monitoring purposes to check the diversity of applicants.

• to ensure that an applicant who is a disabled person can benefit from any measures aimed at improving disabled people’s employment rates. For example: a guaranteed interview scheme. It must be made clear to job applicants that this is why the question is being asked.

• because having a specific impairment is an occupational requirement for a particular job. For example: an employer wants to recruit a Deafblind project worker who has personal experience of Deafblindness. This is an occupational requirement of the job and the job advert states this.

• to establish a person’s ability to carry out a function that is absolutely fundamental to that job. For example: a construction company is recruiting scaffolders. The employer can ask about health or disability on the application form or at interview if the questions relate specifically to an applicant’s ability to climb ladders and scaffolding to a significant height. The ability to climb ladders and scaffolding is fundamental to the job. In practice, even if a function is intrinsic to the job, employers should ask a question about a disabled person’s ability to do the job with reasonable adjustments in place. There will therefore be very few situations where a question about a person’s health or disability needs to be asked.

• to vet applicants for reasons of national security.

These new provisions may prove to be fertile ground for new case law. Opinions are likely to differ as to whether ability to carry out a function is “intrinsic” to the work concerned. For example, would it be permissible to ask someone applying for a very demanding or senior position whether they had ever suffered from a stress related illness? Nor is it clear how the tribunals will interpret what is “necessary” for any of the above purposes.

However, it is likely that any questions should concentrate on the applicant’s current health and not on past conditions.

Whilst these new provisions may require a change in employers’ practices, it is usually possible to achieve satisfactory recruitment outcomes by asking questions about whether someone has the relevant skills, qualities or experience to do the job, rather than about their health or about any disability they may have. The USA and several European countries already have legislation preventing employers from asking about health until after a conditional job offer has been made.

Many employers are likely to take the view that they will not risk asking pre-employment health questions at all, or that questions will solely relate to establishing whether adjustments need to be made to the interview or recruitment process to accommodate a disabled applicant, rather than tailoring the pre-employment questionnaire to the specific job description in each case, which would be a time consuming process.

If the employer considers a health check is necessary for insurance purposes, for example, this can be carried out once an applicant has been offered the job, and the job offer can be made conditional on the results of the health check.


WHAT SHOULD EMPLOYERS DO?

Employers should review their recruitment documentation and practices to ensure they will comply with the above provisions and should consider providing updated equality training to employees, particularly those who will be involved in the recruitment process.

Naturally, Peninsula will be making amended application forms available for clients to download from the Employment Stationery section of our BusinessWise service in due course.

The Masterclass article in the next Issue of the Bottom Line Express will consider the provisions relating to harassment contained in the Equality Act 2010.

For more information or advice on the Equality Act, call the Advice Service on 0844 892 2772.