Equality Act 2010Issues forum – October 2010

Equality Act – October 2010

Contents

Equality Act 2010Suitable for work? - the impact of theEquality Act 2010 1

Section 60 stirs a healthy debate 2

Practical Impact 3

What amounts to a function which is‘intrinsic to the job’? 3

Penalties 3

In practice... 4

Action Plan 5

The Future 5

Suitable for work? - the impactof the Equality Act 2010It is common practice for employers to seekinformation about the health of prospectiveemployees by issuing job applicants witha ‘pre-employment health questionnaire’asking for details of susceptibilities orprevious illness or injury. There can be verygood reasons for doing so. Employers willof course be conscious of their duties andresponsibilities both at common law andunder the Management of Health and Safetyat Work Regulations 1999 which requiresemployers to assess the risk to health,undertake appropriate health surveillance andtake into account employees’ capabilities.

Such a process aspires to not only protectthe employer against allegations of breachof duty and from enforcement action, butalso to protect the future health of theprospective employees and their workcolleagues. Likewise, employers will beconscious of their responsibilities towardsdisabled job applicants under the oldDisability Discrimination Act (replaced from1 October by the Equality Act 2010), andwill require knowledge of any long termdisabilities so that they can make reasonableadjustments where necessary.

One of the common problem areas fordisabled job applicants is pre-employmenthealth questionnaires. Anecdotal evidencesuggests that there is considerablediscrimination against disabled people (andin particular those with mental health issues)in recruitment and people are often put offeven applying for jobs because of pre-employment health questions. This has ledto campaigns calling for more specificmeasures to be introduced. As a resultprovisions have now been included in theEquality Act 2010 (the ‘Act’) which cameinto effect from the 1 October 2010.

The Act will apply in England, Walesand (with a couple of minor exceptions)Scotland. It will not apply in Northern Ireland;equality is a devolved matter for the NorthernIreland administration to address separately.

The Act has two main purposes:

• To harmonise discrimination law; and

• To strengthen the law to supportprogress on equality.

The Act collates and restates the existingdiscrimination legislation concerning sex,race, disability, sexual orientation, religion,belief and age, and seeks to adopt a singleapproach where appropriate. It alsocontains a number of important changesto the law. The majority of past legislationon discrimination has been repealed bythis Act coming in to force.

Equality Act 2010

Equality Act – October 2010

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Section 60stirs a healthy debate:Section 60 of the Act states that a potentialemployer must not ask about an applicant’shealth or disability until the person has beeneither:

1. Offered a job either outright or onconditions; or

2. Included in a pool of successfulcandidates who are to be offered a jobwhen a position becomes available.

This includes asking such a question aspart of the application process or during aninterview. In addition, no-one else (such asan Occupational Health practitioner) can askthese questions on the employer’s behalfbefore the job offer is made (or beforeinclusion in a pool of successful applicants).

Section 60(3) explains that the employerdoes not contravene the relevant disabilityprovision merely by asking about anapplicant’s health, although the employer’ssubsequent conduct in reliance upon theinformation given might be in contraventionof a relevant disability provision. This is animportant consideration as in the event ofa discrimination claim, the burden of proofwould shift to the employer under Sections60(4) and (5) i.e. the employer would have toprovide evidence that any questionposed was relevant.

The prohibition set out in section 60(6) onraising enquiries about disability and healthhas some exceptions, and does not applywhere the question is asked for one or moreof a limited number of reasons, including:

• Establishing whether the employer willbe under a duty to make reasonableadjustments in connection with anyproposed job assessment i.e. therecruitment process

• Establishing whether the candidate willbe able to carry out a function that isintrinsic to the work concerned; and

• Monitoring diversity and the range ofpersons applying to the employer forwork.

In practice, it is questionable as to howmuch added protection this provision willprovide given the fairly broad exceptions.There are many jobs which, because of theprocesses involved or the substances towhich an employee could be exposed, may

pose a risk to the health of a potential,susceptible, employee. One such exampleis the possibility of an allergic reaction toingredients such as flour, dust or nuts ina bakery. In these or in ‘higher risk’ jobs,where following an appropriate job riskassessment specific health risks areidentified, it would be appropriate to provideapplicants with a health questionnaire whichasks questions directly relevant to the risk.

However, the Equality and Human RightsCommission (EHRC) will have the power toinvestigate the use of prohibited questionsand take enforcement action in its ownname, even where no discrimination can beshown to have taken place. In addition, theAct may be further strengthened at somefuture stage as regards to protection againstdiscrimination in selection arrangements,potentially requiring employers to ensurethat selection for interview is carried out onan anonymous basis, and that the personselecting doesn’t know the candidatesprotected characteristics.

Practical Impact:Employers who use questionnaires or healthscreening must take care and consider:

When they should pose healthquestions:

• If prior to making a job offer, then thismust be for a reason falling within oneof the permitted exceptions;

The type of questions posed:

• What information does the employerintend to elicit? Questions will haveto be carefully worded

• The questionnaire should be jobspecific not generic. It must addressa ‘function’ which is intrinsic to theparticular job. With reference to theearlier example, a question to elicitwhether the applicant has a nut allergymay be ‘intrinsic’ to a bakery productionassistant role handling raw materialsbut may not be relevant for an adminassistant who is unlikely to be exposed

• Employers should take care that theyare able to answer with evidence whythe question has been asked. Thiscould include input from the companyHealth and Safety advisor througha job specific Risk Assessment,plus supporting comment by theOccupational Health advisor andwith the agreement of the employer’sHR team

• Alternatively, questions asked with aview to making reasonable adjustmentsin connection with the interview or anyproposed assessment are also valid

• Employers should be clear as to whyand what type of questions are posedbefore short-listing candidates. In thealternative, the medical questionnairecould be sent out post interview,making the job offer subject tocompleting a successful andappropriate medical assessment.

What amounts to a functionwhich is ‘intrinsic to the job’?There is likely to be much debate aroundterms such as ‘intrinsic’ and ‘reasonableadjustments’. Unfortunately it may takesome time and individual case law beforewe receive some beneficial interpretationand clarification.

Each role will have to be consideredindividually. However there are clearly jobsin which certain physical capabilities may beregarded as intrinsic, as well as workplaceexposures which are regarded as inevitable.By way of example it may be appropriate toask an applicant applying for a technicalposition in a printing role where their rolerequires them to differentiate variationsin colour, whether they are colour blind.

Less clear-cut scenarios may arise, forexample, where a job requires significantlifting and handling. Is it then appropriateto ask questions relating to physical health,previous back & musculo skeletal conditionswhich may indicate a pre-disposition toinjury?

These will ultimately be matters for courts todecide albeit this does not necessarily helpemployers in the short term. As a minimum,employers need to be able to demonstratethat they have considered the Act, haveacted to the best of their ability in settingup a process and are implementing thatprocess consistently.

PenaltiesApart from an enforcement action by theEHRC the person who believes they havebeen discriminated against can bring a claimwithin three months of the alleged conducttaking place to an Employment Tribunal(section 120).

If an Employment Tribunal finds in favourof the Claimant it can (section 124):

• Make a declaration regarding therights of the Complainant and/orthe Respondent

• Order compensation to be paid,including damages for injury to feelings;and/or

• Make an appropriate recommendation(which may include recommendationsto benefit the wider workforce andreview of the employer’s policies andtraining).

Employers should also remember thattheir procedures in compiling personaldata must comply with the informationin the Commissioner’s Code of Practiceon employment.

In support of the Act, the EHRC haspublished new statutory Codes of Practiceon Discrimination which will replace theexisting codes, these include guidance onrecruitment. Further guidance can be foundat www.acas.org.uk

Equality Act – October 2010

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In practice...Q: I own a printing company and want

to employ a printer in a technicalrole. Can I ask applicants whetherthey have good eyesight?

A: Yes, providing the questions relates toa function that is intrinsic to the workand/or identified as a health concernduring the Risk Assessment process.Care has to be taken, but in thesecircumstances, where the employeemay have to differentiate betweenshades of colour it is appropriate toask a specific question such aswhether the applicant is colour blind.

Q: I am an Operations Manager fora commercial bakery. I wish toemploy operatives in the rawproducts section, but am concernedthat if they already have asthma orare allergic to flour dust this mayharm their health and expose thecompany to a civil claim fordamages. What can I ask?

A: As per the example above, if reasonableadjustments to working practices can’tbe made and some exposure to flourdust is unavoidable, then you areentitled to ask whether they are allergicto flour dust as this is intrinsic to the job.However you may not be entitled to askwhether they have any general chestconditions.

Q: If I am not permitted to ask anapplicant about their medicalhistory pre interview can I do sobefore I confirm appointment?

A: Yes, you can appoint subject tothe successful applicant passing asatisfactory medical. Once again anymedical assessment cannot be as wideranging as was allowed previously andmust address the applicant’s medical‘risks’ intrinsic to the job.

Q: I want to employ an applicantfor a job requiring lifting, manualhandling and repetitive work. AmI entitled to ask questions about anapplicant’s general medical fitness?

A: Not specifically, however you canprovide applicants with a detailedoverview of what the job involves.You can ask in general terms whetherthere is anything the applicant maywish to draw to your attention inrelation to performing that role.

Q: I use agencies to provide workersas and when I need them, how canI vet the medical suitability of thecandidates they offer?

A: Provide your Agency with a detailedjob description and advise them of any‘intrinsic’ health risks just as you wouldif you were recruiting direct.

Q: What will be the situation withannual medicals and healthsurveillance. For example, wecurrently have a blanket policy totest our employees’ hearing. Thisgives us the ability to prove whethersomeone’s hearing has deterioratedor not during their time with us inthe event of a civil claim. How doesthe Act apply in such scenarios.

A: Establishing a benchmark of hearingperformance where noise inducedhearing loss is an intrinsic risk wouldlikely be regarded as a normal andacceptable component of an employer’shearing conservation policy. However,it is likely the Tribunal would take a dimview if employment were refused orterminated on these grounds alone.Many people suffer some degree ofhearing loss and, in isolation, this doesnot make them unfit for work - unlessit falls below a minimum prescribedperformance standard, as may bethe case in some safety critical roles.

As a general comment, it will be interestingto see the Tribunal’s interpretation ofsituations where Best Practice medicaladvice recommends that employees shouldnot be exposed to specific hazards wherethey have already exhibited symptomsabove a certain level. An example hereis removing employees from exposureto vibration where there is a risk of theirStage 2 HAVS developing to Stage 3.Given the standard which exists in thisexample, it would seem reasonable for adiligent employer to seek clarification thata prospective employee isn’t already ator close to Late Stage 2.

Action Plan1. Review job specific Risk Assessments

with the support of an occupationalhealth specialist to establish:

a. Is there a risk to the future health ofan already susceptible applicant?

b. Is there a health requirement whichis intrinsic to the job?

2. If Yes, consult with HR and youroccupational health team to establishany need for a bespoke pre-employmentmedical questionnaire. Alternativelywill it be sufficient to offer employmentsubject to an appropriate healthassessment (medical) post offer?

3. Where the need has been identified,draft a job specific medical questionnaireto be sent with detailed Job Descriptionto applicants.

4. Consider questionnaire responses. Ifthe applicant can safely undertake therole with reasonable adjustments thentheir application should be accepted.If not, then it may be appropriate toreject the application.

5. Where no pre-employmentquestionnaire has been used and ajob offer has been made, you can takeappropriate measures to ensure thatthe individual’s health or disability willnot prevent them from undertaking therole. This might include a ‘post offer’questionnaire and/or medical. Thismust again be limited to factors that areintrinsic to the job role and taking intoaccount the potential for reasonableadjustments to be made. Dependingon the outcome the application canbe accepted or rejected.

The FutureThe Act is likely to take 12 – 18 months tobed down and for the first cases to appearbefore the Employment Tribunal. In mostcases awards of compensation are likelyto be modest and reflect injury to feeling;the ‘discrimination’ having prevented anapplicant being short-listed for interview.

However if a position is offered subject toa satisfactory medical and the offer is thenwithdrawn for medical reasons, which arenot intrinsically relevant to the job, then asignificantly higher award may follow as the‘discrimination’ has led to a direct loss ofemployment. An example would be rejectionof the applicant for a manual handling rolesimply because the medical revealed a longterm skin condition.

Risk Managers may be concerned that theAct will dilute an employer’s ability to screenout prospective employees whose presentmedical conditions (eg. asthma, musculoskeletal, allergies, etc) may be aggravated bytheir work - thus exposing the organisationto costly civil claims. Providing thatemployers are careful in how they managethe recruitment process, they should not beat a disadvantage. An accurate descriptionof the job should inform the prospectiveapplicant of what is involved. If the applicantstill chooses to apply and is successfulat interview then the appointment canbe made subject to the safety net of arelevant medical assessment.

Author biographyNoel Walsh is Head of CommercialInsurance at national law firm WeightmansLLP, principal author of over 40 positionpapers and publications relating to liabilityfor personal injury and as the editor of theRadar Journals he is widely known for hiswork on emerging risks and what to doabout them.

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