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Pre-employment enquiries

Section 60 Equality Act 2010 limits how far employers are allowed to ask a job applicant (external or internal) about health or disability. There is EHRC and government guidance on s.60 - see below Links.

In summary

Section.60 Equality Act partially prohibits an employer from asking about health or disability before offering a job. Work situations beyond employment are also included.

Any enquiries are allowed after a job offer (though the Data Protection Act requires the questions should be relevant). A conditional job offer is enough - so the employer can offer a job conditional on health issues, and is free to ask any questions after that.

S.60 includes both external and internal job applicants, so it includes someone who has applied for promotion.

Enquiries are also allowed (even before a job offer) after the applicant has been put into a pool pending job availability.

Some questions are allowed

Even before making a job offer, an employer is allowed to make enquiries which are necessary for a permitted purpose. The most important permitted purposes are:

Wide range of enquiries covered

Section 60 applies to questions in application forms, in medical questionnaires (if before a job offer), as well as questions at the interview itself. It includes questions to a third party, such as a previous employer, so any request for a reference before a job offer should not ask about sickness absence.

Reason for s.60

This provision is most useful for hidden disabilities, such as mental health conditions or diabetes. Stammering will often be evident at the interview anyway.

After a conditional job offer, s.60 no longer restricts what enquiries can be made. But if the employer then rejects the applicant, it will clearly be related to heath or disability. The legality of that can then be considered under the Equality Act.

Before s.60, employers could ask questions on disability at the job application stage (eg Have you ever had a mental health condition?), and then reject or 'lose' an application. It would be difficult to show this had anything to do with the disability.

Enforcement

It is unlawful for an employer to breach s.60, but individuals cannot directly enforce it. However, an individual can use s.60 to shift the burden of proof. If the employer breaches section 60 and the applicant claims direct discrimination, the burden of proof shifts to the employer. Also the EHRC has powers to enforce s.60 directly. See below Enforcement.

Talking about a stammer

If a person decides to mention their stammer at a job interview (many find it helpful to do this, in a positive way), interviewers may be reticent due to concern about what questions they are allowed to ask under s.60. See below Voluntarily mentioning a stammer.

How do I deal with an unlawful enquiry?

On what to do if faced with an enquiry which may be unlawful under s.60, there are some suggestions in Pre-employment health questions: Guidance for job applicants on Section 60 of the Equality Act 2010 (pdf, link to EHRC), page 5.

Links

Permitted enquiries

Permitted pre-employment enquires:

Section 60 of the Equality Act does not apply so far as asking the question is necessary for a permitted purpose. In broad terms, the permitted purposes are as follows, where A is the employer and B is the job applicant:

establishing whether B will be able to comply with a requirement to undergo an interview or other assessment;

establishing whether a duty to make reasonable adjustments is or will be imposed on A in relation to B in connection with a requirement to undergo an interview or other assessment;

establishing whether B will be able to carry out a function that is intrinsic to the work concerned (after making any reasonable adjustments - though there is also a subjective test on reasonable adjustments);

monitoring diversity in the range of persons applying to A for work;

taking 'positive action' within section 158 (see below Guaranteed interview scheme); or

if A applies in relation to the work a requirement to have a particular disability, establishing whether B has that disability (additional tests apply here).

There is also an exception related to vetting of applicants for work for reasons of national security.

S.60 does not apply so far as asking the question is necessary for a permitted purpose - see box on right.

The most important permitted purposes are:

Applicants are asked on an application form whether they have a disability that requires the employer to make a reasonable adjustment to the recruitment process. This is to allow, for example, people with a speech impairment more time for interview. This enquiry would be permitted.
Para 202, Equality Act 2010 Explanatory Notes (pdf, link to legislation.gov.uk).

Before interview - how helpful is s.60 for stammering?

A stammer will usually be apparent in any event at the interview. But is s.60 helpful in being selected for interview?

If a job applicant who stammers wants reasonable adjustments at the interview (or in other assessments, such as making a presentation), the employer can still ask about this before selecting who to interview. This is a weakness in s.60: see below the Disability Rights Taskforce report. Even though the employer only needs the information after selecting who to interview, s.60 allows the employer to ask for if beforehand.

If the person who stammers does not want to request reasonable adjustments to the interview etc, this is not an issue and s.60 may help get an interview without the stammer getting in the way. (See also Recruitment: Should I tell the employer I stammer?)

Even if the applicant does want to request reasonable adjustments in the interview etc, s.60 will help if the employer follows EHRC guidance. The Employment Code of Practice says:

"...This means in practice that any information on disability or health obtained by an employer for the purpose of making adjustments to recruitment arrangements should, as far as possible, be held separately. Also it should not form any part of the decision-making process about an offer of employment, whether or not conditional."
Para 10.29, Employment Code

It is not clear at present how far, if at all, that is legally enforceable. This statement in the Code of Practice will be more relevant for larger employers, as it will be easier for them to ensure that information on reasonable adjustments does not go the people who select applicants for interview.

Some job applicants may decide in practice that even though the application form includes a question about reasonable adjustments to the recruitment process, they will only raise any adjustments with the employer if and when selected for interview..

Intrinsic job functions

A person who stammers may feel under pressure to disclose a stammer in response to a question on ability to carry out a function intrinsic to the work, if this involves speech. In deciding whether to disclose, it may be relevant how far (if at all) the applicant feels the stammer will affect performance. It will also be important how the question is worded. Initially employers are likely to be cautious in what questions they ask. See also Responding incorrectly to a question on disability.

There is also the question of whether the relevant question is lawful or not, hence the likely caution of employers. Despite guidance from EHRC and the government, in the absence of court decisions it is not clear at present how s.60 will be interpreted.

The Employment Code para 10.38 says the 'intrinsic functions' permitted purpose should be applied narrowly because, in practice, there will be very few situations where a question about a person's disability or health needs to be asked - as opposed to a question about a person's ability to do the job in question with reasonable adjustments in place.

Reasonable adustments for job itself, and intrinsic job functions

Where there would be a duty to make reasonable adjustments to the job itself, instrinsic job functions are viewed as they would be after the adjustments are made (subject to a 'reasonable belief' test - see below). This is under s.60(7).

A person who stammers has trouble answering the phone. However, that is only a minor part of the job which might readily be done by other staff. It is likely to be a reasonable adjustment that the person who stammers does not have to answer the phone if they don't want to. So answering the phone would not be an intrinsic function (after reasonable adjustments), and before a job offer the employer could not ask about ability to do it.

Para 10.30 of the Employment Code says that questions about reasonable adjustments needed for the job itself should not be asked until after the offer of a job has been made unless these questions relate to a function that is intrinsic to the job.

'Reasonable belief' test

S.60(7) seems intended to protect an employer who reasonably believes that a reasonable adjustment would not be required, and so the subsection looks at intrinsic functions as they would be without that adjustment being made. There does seem to be a drafting issue with it though. S.60(7) says that where the employer "reasonably believes" a duty to make reasonable adjustments would apply in connection with the work, the test is whether the function would be intrinsic to the work after the adjustment is made. One would expect this rather to read "believes or reasonably should have believed" that the reasonable adjustment duty applies, or similar. The wording seems the wrong way round. It may well be that tribunals will interpret it in this more sensible way.

Monitoring diversity

S.60 allows questions so far as they are necessary to monitor diversity in the range of people applying for jobs.

EHRC guidance says that monitoring information should be collected separately from other information given in the job application where possible, and that it is a breach of s.60 to use monitoring information about health and disability to shortlist candidates (see particularly questions 6 and 7 in Pre-employment health questions: Guidance for job applicants on Section 60 of the Equality Act 2010 (pdf, link to EHRC)). However, these issues will need to be decided by the courts.

Under this 'monitoring diversity' head, it is presumably 'necessary' only for the employer to ask about whatever broad categories of disability it uses in its monitoring (eg physical, mental, sensory?), rather than asking for the specific information that the disability is a stammer, for example.

Voluntarily mentioning a stammer

The Employment Code at para 10.37 makes the point that where a disabled applicant voluntarily discloses information about their disability, the employer must ensure that in response they only ask further questions that are permitted by the legislation.

People who stammer can find it helpful at an interview to mention the stammer, to "clear the air" on it. However, in the light of s.60, interviewers may now be wary in how they respond, at least as regards asking questions on the stammer. It would be helpful for people who stammer to bear in mind that reticence on the part of interviewers might not be a negative response to the disclosure. It may be caution because of the legal provisions. (Also, even before s.60, some interviewers may have been cautious because they would not want to ask a question that could seen as discriminatory.)

A person brings up their stammer at an interview, giving an example of how dealing with stammering has given them motivation and a better awareness of people's needs. The interviewing panel is still prohibited by s.60 from asking questions except so far as necessary for a permitted purpose. Any reticence on the part of the interviewers may therefore be caution rather than a negative reaction.

Because of s.60, if a person who stammers does want the employer to know more about their stammer - with a view to allaying any fears about whether they can do the job - this may need to come from the person who stammers themself, without being prompted by questions from the employer.

Some examples of what an employer can and cannot ask at an interview are in Pre-employment health questions: Guidance for job applicants on Section 60 of the Equality Act 2010 (pdf, link to EHRC), pages 7-9.

Guaranteed interview scheme

The permitted purposes include taking 'positive action' within section 158 EqA. It seems this is intended (amongst other things) to allow enquiries as to whether the applicant is entitled to a 'two ticks' scheme guaranteed interview.

Accordingly, the Employment Code (para 10.33) says it is lawful for an employer to ask if a person is disabled so they can benefit from any measures aimed at improving disabled people's employment rates. The paragraph goes on to say that this could include the guaranteed interview scheme whereby any disabled person who meets the essential requirements of the job is offered an interview, but adds that an employer should make clear this is the purpose of the question.

(Personally I am not sure if technically the Equality Act wording achieves this aim of making enquiries permissible for the purposes of the guaranteed interview scheme. The main issue is the exception in s.158(4)(a)).

Pool of applicants

There is a special rule if the employer is not in a position to offer work to the candidate but there is a pool of applicants from whom the employer intends (when in a position to do so) to select a person to whom to offer work. Here the key time before which non-permitted enquiries should not be made is when the applicant is included in the pool (s.60(1)(b) EqA).

Scope of s.60 - 'work'

S.60 applies where an 'application for work' is made. Under s.60(9), 'work' has an unusally wide meaning. For example, as well as employment, it includes "contract work, a position as a partner, a position as a member of an LLP, ...an appointment to a personal or public office, or the provision of an employment service". The omitted wording relates to barristers and their pupils (Equality Act 2010 - there is an actual devil in the detail (link to blog.usefullyemployed.co.uk)).

So s.60 will normally include enquiries by a recruitment agency, and apparently even enquiries made by a training company before offering a place on a CV writing workshop (an 'employment service').

Enforcement

The ban in s.60 can only be directly enforced by the Equality and Human Rights Commission. However, s.60 also gives rights to individuals by shifting the burden of proof on a claim for direct discrimination.

If an individual claims that conduct by the employer (e.g. turning him down for a job) in reliance on information given in response to a prohibited enquiry is direct discrimination, the burden of proof shifts to the employer. It will be for that employer to show on a balance of probabilities that there was no direct discrimination.

In response to a prohibited enquiry in the application form, a job applicant discloses he has a stammer. On the basis of the paper job application, the employer does not shortlist him for interview. The job applicant claims for both direct discrimination under s.13 EqA and, in the alternative, 'discrimination arising from disability' under s.15.

On the claim for direct discrimination, the burden of proof shifts to the employer because of the prohibited enquiry under s.60. So it is for the employer to bring evidence sufficient to show that the stammer was not a significant influence on its decision not to shortlist, so as to constitute direct discrimination. (For there to be direct discrimination, the stammer does not have to be the only or even the main reason for the employer's decision, provided it is more than a trivial factor). In other words, the claim for direct discrimination should succeed unless the employer can show there was no direct discrimination - though see note below on proving the stammer is a 'disability'.

The employer will probably seek to discharge its burden of proof by showing what was its real reason for not shortlisting the person.

The employer may try to argue - and bring evidence to show - that it wasn't the stammer as such that was a concern but the resulting communication abilities, so that any possible claim would not be for direct discrimination, but rather for 'discrimination arising from disability' where the employer has a possible 'objective justification' defence. However, the claimant may well be able to argue that this is still unlawful direct discrimination (with no justification defence), because the employer has stereotyped what abilities a person who stammers will have, without bothering to consider this individual's abilities: see Stereotypes and assumptions.

Even if there were held to be no direct discrimination (so the s.13 claim fails), it is likely to be difficult in these circumstances for the employer to show that the objective justification defence applies, so the claim under s.15 is likely to succeed (see 'Direct discrimination' vs 'discrimination arising from disability': Is the distinction important in practice?).

Alternatively the employer may be able to bring evidence sufficient to show its reason for not shortlisting had nothing to do with the stammer, in which case the claim will fail.

For a claim to succeed, the claimant may still have to show his stammer is a 'disability' as defined, but if there is difficulty on that the new rules on perceived disability could help.

The shift in burden of proof only applies to direct discrimination under s.13, not for example to 'discrimination arising from disability' under s.15. However, in an example such as the one above where the employer has not spoken to the claimant, it may be difficult for an employer to defend a s.13 claim. Also, the shift in burden of proof may be useful in practice outside of s.13, in that to resist the s.13 claim (where the burden of proof is shifted) the employer will probably need to bring evidence of what its actual reason for the decision was, and this may throw up material useful to help a s.15 claim, for example.

History

In April 2009 the House of Commons Work and Pensions Committee had said:

"We endorse the Disability Rights Taskforce's recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. As a general rule such questions should only be permitted after a conditional/provisional job offer has been made. There will be cases where a job offer is withdrawn because of health-related concerns or because reasonable adjustment for a disability is not possible. However, the process would then be transparent, and where there is disagreement as to the decision, further consideration or mediation are possible."
Para 156 of committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

The former Disability Rights Commission also believed that disability related enquiries before a job is offered should be allowed only in very limited circumstances. The DDA, it said, was proving inadequate in addressing recruitment problems. Asking questions about applicants' disabilities prior to job interview and selection enables employers who wish to discriminate to simply reject disabled applicants at an early stage. If an employer does not know that an individual has a disability, they will be unable to make prejudiced judgements on this basis. (A Framework for Fairness Response, pages 26-27).

Disability Rights Taskforce

A provision of this sort had previously been recommended by the Disability Rights Taskforce (link to leeds.ac.uk) in 1999.

However in relation to enquiries before interview, s.60 offers less protection than was recommended by the Disability Rights Taskforce - see recommendations 5.32-5.33 of the DRTF's report. That report had suggested that enquiries related to reasonable adjustments in the selection process should be permitted "when inviting someone for interview or to take a selection test" (my emphasis), so after the applicant has already been selected for interview. See above Before interview - how helpful is s.60 for stammering?),

The Taskforce had also recommended there should be rules on confidentiality of information obtained for monitoring purposes; this is not explicity covered by the Equality Act, assuming their idea was that the information should be confidential from interviewers. There is EHRC guidance on it though. See above Monitoring diversity.

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Last updated 6th July, 2013