Pre-employment enquiries

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 caution about what questions they are now permitted to ask under s.60. See below Voluntarily mentioning a stammer.

The shift in burden of proof only applies to direct discrimination, not to the new heads of 'indirect discrimination' or 'discrimination arising from disability' introduced by the Equality Act.

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; 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.

There is an exception from the ban so far as asking the question is necessary for a permitted purpose - see box on right.

The most important permitted purposes are:

• establishing whether the employer has a duty to make reasonable adjustments in connection with an interview or other assessment;
• establishing whether the applicant will be able to carry out a function intrinsic to the work concerned; and
• monitoring diversity.

How helpful is this for stammering?

It remains to be seen whether these rules will be useful in practice for stammering. A visible result of the rules will be that pre-employment queries will be more precisely worded, targeted at the permitted purposes, rather than just asking generally about disability.

However, the permitted purposes do still give an employer significant scope to ask questions on disability, including stammering, before selecting people for interview (and of course later):

Reasonable adjustments at recruitment

If a job applicant who stammers want reasonable adjustments at the interview, the employer will still be able to ask about this before selecting who they interview. That is so even though this information is not needed till after candidates have been selected for interview.

And of course who is to say whether the employer will use that information in deciding who to interview. See below the Disability Rights Taskforce report on this point.

The Employment Code (para 10.29) does say: "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." However it is far from clear at present how far, if at all, that is legally enforceable.

Intrinsic job functions

A person who stammers may feel under pressure to disclose a stammer in response to a question on intrinsic job functions, which will often involve speech. This may depend to an extent on how far (if at all) the applicant feels the stammer will affect performance, but also on how the question is worded. Initially employers are likely to be cautious in what questions they ask.

There is also the issue of how far a particular question asked by the employer is lawful, hence the likely caution of employers. It is not clear at present how s.60 will be interpreted. One issue is: for an enquiry to be legitimate how large an impact on a person's ability in relation to the function must a disability have?

The Employment Code para 10.38 says this 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. See further below Reasonable adjustments in the job itself, and intrinsic job functions.

Monitoring diversity

Under this head, it may be that the employer will only be able to ask about the broad category of the disability (eg physical, mental, sensory?) to reflect whatever categories it uses in its monitoring, rather than asking for the specific information that the disability is a stammer, for example.

Other points

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 may not be a negative response to the disclosure, but caution because of the legal provisions. (Even before these provisions, interviewers may have been cautious because they would not want to ask a question that could seen as discriminatory.)

Because of an employer's caution in answering questions, if a person who stammers does want the employer to know more about their stammering - 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.

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).

The Employment Code at para 10.38 says the permitted purpose for intrinsic job functions 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.

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.

S.60(7) seems intended to protect an employer who reasonably believes that a reasonable adjustment would not be required, and so asks about intrinsic functions as they would be without that adjustment being made. There does seem to me 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.

Guaranteed interview scheme

It seems that the reference to s.158 is intended to permit 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).

Disability Rights Taskforce

In relation to enquiries before interview, s.60 offers less protection than was recommended in 1999 by the Disability Rights Taskforce (link to leeds.ac.uk) - 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. The Taskforce had also recommended there should be rules on confidentiality of information obtained for monitoring purposes; this is not covered by the Equality Act assuming their idea was that the information should be confidential from interviewers.

Positive reaction to s.60

The new provision has been welcomed by many: see Pre-employment health questionnaire ban backed by HR chiefs (link to Personnel Today article, 22/1/10).

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 permitted 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).

A clause of this sort had previously been recommended by the Disability Rights Taskforce (link to leeds.ac.uk) in 1999. In part their recommendations are discussed above.