Disabilityby Kate Russell
Protection against discrimination starts at the recruitment stage. It is unlawful for an employer to discriminate against a disabled person:
- In the arrangements made for determining who should be offered employment
- In the terms on which the disabled person is offered employment
- By refusing to offer, or deliberately not offering, the disabled person employment.
The word ‘arrangements’ has a wide meaning. Employers should avoid discrimination in, for example, specifying the job, advertising the job and the processes of selection, including the location and timing of interviews, assessment techniques, interviewing and selection criteria.
The inclusion of unnecessary or marginal requirements in a job specification can lead to discrimination.
For example, if an employer stipulates that employees must be ‘energetic’, when in fact the job in question is largely sedentary in nature, this could unjustifiably exclude some people whose disabilities result in them getting tired more easily than others and is likely to be discriminatory.
Blanket exclusions (exclusions which do not take account of individual circumstances) may lead to discrimination.
For example, an employer excludes people with epilepsy from all driving jobs. One of the jobs, in practice, only requires a standard licence and normal insurance cover. If, as a result, someone with epilepsy, who has such a licence and can obtain such cover, is turned down for the job, then the employer will probably have discriminated unlawfully in excluding him from consideration.
An employer can stipulate essential health requirements, but in any individual case he may need to justify doing so and to show that it would not be reasonable for him to have to waive them.
Stating that a certain personal, medical or health-related characteristic is desirable may also lead to discrimination if the characteristic is not necessary for the performance of the job. Like a requirement, a preference may be decisive against an otherwise well-qualified disabled candidate and may have to be justified in an individual case.
For example, an employer prefers all employees to have a certain level of educational qualification. A woman with a learning disability, which has prevented her from obtaining the preferred qualification, is turned down for a job because she does not have that qualification. If the qualification is not necessary in order to do the job and she is otherwise the best candidate, then the employer will have discriminated unlawfully against her.
The Equality Act 2010 means you cannot ask prospective employees if they have a disability.
Pre-employment health questions can be asked, but only in limited circumstances. These include a situation where you:
- need to establish whether the employee is fit to undergo an assessment, or whether you have a duty to make reasonable adjustments in connection with an assessment
- need to establish whether the job applicant will be able to carry out a function that is intrinsic to the job concerned
- wish to undertake diversity monitoring
- are considering taking positive action in relation to disabled persons
In some cases there can be a genuine requirement of the job that the employee has a particular disability.
Any questions you put must be asked with a view to establishing whether or not the candidate will be able to carry out a function that is intrinsic to the work concerned. The explanatory notes to the act give the example of a candidate who applies for a warehouse job that requires manual lifting and handling of heavy items. That said, exercise caution. You should only ask questions that relate to the candidate’s ability to perform the core duties of the role and restrict your questions to those that are necessary, for example by asking whether the candidate suffers from any health problems that might prevent them from performing the particular function in question, rather than sending them a general medical questionnaire.
You would not be permitted to ask a candidate other health questions until they were offered the job.
When you invite candidates in for interview, you should ask everyone whether they need you to make any reasonable adjustment to help them participate fully in the selection process.
Testing during recruitment
Testing is acceptable, but it must not be discriminatory in content or application. Routine testing of all candidates may discriminate against particular individuals or substantially disadvantage them. If so, you should revise the tests – or the way the results of such tests are assessed – to take account of specific disabled candidates, except where the nature and form of the test are necessary to assess a matter relevant to the job. It may, for instance, be a reasonable adjustment to allow more time for testing, to change the format or accept a lower ‘pass rate’ for a person whose disability inhibits performance in such a test. (See Government Legal Services v Brookes )
The extent to which this is required would depend on how closely the test is related to the job in question and what adjustments the employer might have to make if the applicant were given the job.
For example, an employer sets candidates a short oral test. A candidate is disabled by a bad stammer, but only under stress. It may be a reasonable adjustment to allow him more time to complete the test or to give the test in written form instead, though not if oral communication is relevant to the job and assessing this is the purpose of the test.
In some cases, qualifications are a necessary part of doing a job and in those circumstances you are entitled to specify that applicants for a job must have certain qualifications. However, if a disabled person is rejected for the job because he lacks a qualification, you will have to justify that rejection if the reason why the person is rejected (in other words, the lack of a qualification) is connected with his disability. This may be more difficult where the qualification is not essential, but merely desirable. Justification will involve showing that the qualification is relevant and significant in terms of the particular job and the particular applicant, and that there is no reasonable adjustment which would change this. In some circumstances, it might be feasible to reassign those duties to which the qualification relates, or to waive the requirement for the qualification if this particular applicant has alternative evidence of the necessary level of competence.
For example, an employer seeking someone to work in an administrative post specifies that candidates must have the relevant NVQ Level 4 qualification. If Level 4 fairly reflects the complex and varied nature and substantial personal responsibility of the work, and these aspects of the job cannot reasonably be altered, the employer will be able to justify rejecting a disabled applicant who has only been able to reach Level 3 because of his disability and who cannot show the relevant level of competence by other means.
The Equality and Human Rights Commission has provided other helpful guidance in this area, including the following:
- Any tests should correspond to the job being recruited for.
- The tests should measure as closely as possible the appropriate levels of the skills and abilities included in the person specification.
- All candidates should take the same test unless there is a health and safety reason why the candidate cannot do so or because a reasonable adjustment is required.
- Test papers, assessment notes and records of decisions should be kept on file to enable the employer to reflect on the decisions they are taking and to protect itself in the event of a tribunal claim, subject to appropriate limits for retaining those records.
Once you have made a job offer, you can gather data about health. The offer may be subject to the candidate passing a medical examination. However, if you insist on a medical check for a disabled person and not others, without justification, you will be discriminating unlawfully. The fact that a person has a disability is unlikely in itself to justify singling out that person to have a health check.
If the medical reveals that the employee has a disability, you will be expected to make such reasonable adjustments as you can to enable him to carry out the role. If you simply withdraw the offer without considering reasonable adjustments, the prospective employee will be able to make an employment tribunal claim.
While an employer must not discriminate against a disabled candidate, in general there is no requirement (aside from reasonable adjustment) to treat a disabled person more favourably than he treats or would treat others (though see the example Archibald v Fife CC). An employer will have to assess an applicant’s merits as they would be if any reasonable adjustments required under the act had been made. If, after allowing for those adjustments, a disabled person would not be the best person for the job, the employer would not have to recruit that person.