As you are no doubt aware, the majority of the provisions contained in the Equality Act 2010 (the Act) came into force on 1 October 2010. The provision which has immediately attracted more attention from our clients than any other is that in relation to recruitment and specifically pre-employment questionnaires, contained in section 60 of the Act. This effectively prohibits employers from asking such questions before a job is offered except for in limited circumstances.

This article looks at the limited exceptions and provides employers with practical steps to take in order to prevent a breach of section 60 of the Act.

The reasons for the change

The reasons for this provision are set out in the explanatory notes which accompany the Act. The Disability Discrimination Act 1995 did not prevent an employer from making health or disability related enquiries of applicants for a job, although it did make it unlawful to use the results of such enquiries to discriminate against a candidate because of his or her disability. It is intended that section 60 of the Act will limit the making of enquiries and therefore tackle the disincentive effect that an employer making such enquiries can have on some disabled people when making applications for work.

Pre-employment questionnaires

In essence the provisions mean that an employer must not ask about a job applicant's health until that person has either been offered a job (on a conditional or unconditional basis) or has been included in a pool of successful candidates to be offered a job when a suitable position arises. This will have significant consequences for those employers who issue standard questionnaires as part of their recruitment process.

There are specified exceptions to this general rule namely when health related enquiries which are necessary for the purpose of:

  • finding out whether an applicant would be able to participate in an assessment to test his or her suitability for the work and making reasonable adjustments to enable a disabled person to participate in the recruitment process;
  • finding out whether a job applicant would be able to undertake a function that would be intrinsic (absolutely fundamental) to the job with reasonable adjustments in place as required;
  • monitoring diversity on applications for jobs;
  • supporting positive action in employment for disabled people; and
  • enabling an employer to identify suitable candidates for a job where there is an occupational requirement for the person to be disabled.

We expect that the exceptions listed at 1 and 2 above will be the most likely to be relied upon by employers. The scope of these exceptions is limited as they refer only to the application process and the 'intrinsic' functions of the role respectively. Whether a function is intrinsic to a role will have to be judged on a case by case basis and we would expect that both exceptions will be construed narrowly.

No clear guidance

Unfortunately, no substantive guidance has been provided in relation to when enquiries will be considered 'necessary' and what will be considered to be 'intrinsic'. Indeed, the guidance which has been issued on these points appears, in part, unclear. It suggests that in order to establish whether a person is able to carry out an intrinsic function when recruiting scaffolders, it would be appropriate to ask questions relating to an applicant's ability to climb ladders and scaffolding. However, it would not be necessary to ask an applicant questions about health or disability when recruiting a cycle courier.

There is also no guidance on how questions falling under the exceptions should be phrased. For example, if a role in a warehouse is to involve a significant amount of heavy lifting, it is indicated in the guidance which has been issued that it would be appropriate to establish whether an applicant is able to do the job. However, it is not clear whether the question should be limited to: 'Do you have any health problems which might prevent you from lifting heavy objects?' or whether it would be acceptable to go further and to ask a range of questions about ailments which could impact on the ability to lift heavy objects.

Unfortunately the only way clarity will be obtained on this point is through litigation in time.

Penalties

Whilst asking a prohibited question will not in itself be actionable discrimination, action taken in response could be. If a question is asked at the application stage, which does not fall under the exceptions, and the applicant is rejected and brings a direct discrimination claim, the burden of proof will fall to the employer who would have to show that the applicant was not rejected on medical grounds. The tribunal can assume that discrimination has occurred unless the employer can show otherwise. Claims such as this could be defended on two grounds:

  1. by demonstrating that disability was not the reason that the application was unsuccessful; the reason was that there were better candidates; or
  2. by showing that the refusal was because of a consequence of the disability, not the mere existence of it. In the latter circumstances, care would need to be taken as there may be a risk of an indirect discrimination claim or for a failure to make reasonable adjustments and objective justification would need to be established.

The Equality and Human Rights Commission does have the power to investigate the use of prohibited questions and may take enforcement action in its own name even when no discrimination has occurred. It remains to be seen how frequently this provision will be used.

Practical steps

In light of the lack of guidance and the fact that the questions which may or may not be permissible will be very much dependent upon the specific role envisaged, it is difficult to give firm generic advice. However, some practical steps which we feel may reduce risk are:

  1. Stop using generic pre-employment questionnaires and review these in the context of each role;
  2. Ensure that any third parties involved in your recruitment process, for example occupational health professionals or agents, are complying with the provision of the Equality Act 2010;
  3. If asking any health related questions consider whether:
    1. they are necessary;
    2. they fall within one of the exceptions above (for example, are you satisfied that the activity concerned is an intrinsic part of the role applied for and do you have a job description to support this assertion?); and
    3. the wording of the question makes it clear that the scope of that question is limited to that exemption. For example, rather than asking 'Do you have a disability which would require us to make adjustments?', instead ask 'Do you have a disability which would require us to make reasonable adjustments to the recruitment process?' Questions should also be limited to an individual's current state of health as this is much more likely to satisfy the exclusions above than those in the past tense or relating to previous health problems;
  4. Preface the questions with the following statement: 'In compliance with the provisions of Section 60 of the Equality Act 2010 the following questions are asked for a specific purpose:
    • to make arrangements for any reasonable adjustments to enable you to attend interview (and provide equal opportunity to perform well at interview);
    • to assess whether you will be able to perform a 'function' of the job which is 'intrinsic' to the work concerned;
    • [to establish whether the 'positive action' protocol should be utilised to offer employment to a disabled candidate specifically because they are disabled and because disabled persons are under-represented within the business];
    • to collect information on 'protected characteristics' for monitoring purposes.'
  5. If necessary liaise with occupational health to establish appropriate questions;
  6. Keep any answers provided separate from the information given to the selection panel or decision makers;
  7. Keep notes of why jobs were not offered to unsuccessful candidates.

You are still entitled to make offers of employment conditional on a satisfactory medical assessment and once a job has been offered can ask health questions. However, if an offer is withdrawn at this stage there is a risk that the individual will assert that the withdrawal of the offer was discriminatory as, subject to a satisfactory health assessment, the role was theirs. Therefore you will need to consider carefully, before taking such steps, whether any reasonable adjustments could be made.