Home » Employment » Recruitment and promotion » Pre-employment enquiries

Pre-employment enquiries

Disclaimer – please read
This page does not apply outside Great Britain.
Last updated 23rd March, 2023.

Section 60 Equality Act 2010 limits how far employers are allowed to ask a job applicant about health or disability before making a job offer. Individuals cannot claim for breach of s.60 as such, but it may shift the burden of proof to the employer.

Summary

  • S.60 Equality Act (EqA) partially prohibits an employer from asking about health or disability of a job applicant before making a job offer (or putting someone in a pool pending job availability). It includes both external and internal applicants. Below Prohibition in s.60.
  • A conditional job offer is enough. For example, s.60 allows an employer to make an offer subject to health enquiries, and then issue a health questionnaire.
  • S.60 allows questions even before making a job offer so far as they are “necessary” (below) for a permitted purpose (below). The most important permitted purposes are:
    • establishing whether reasonable adjustments are required for the interview and assessment process
    • establishing whether the applicant will be able to carry out functions intrinsic to the work, after reasonable adjustments if the employer reasonably believes the adjustment duty would apply: below Intrinsic job functions
    • to monitor diversity: below Monitoring diversity.
  • 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: below Voluntarily mentioning a stammer.
  • Only the Equality and Human Rights Commission (EHRC) can enforce s.60 directly: below Enforcement by EHRC.
  • An individual job applicant cannot claim under s.60 as such. Any claim by an individual must be for discrimination under one of the normal EqA provisions. However s.60 may help in such a claim by shifting the burden of proof, so that it is for the employer to prove that there was no unlawful discrimination. Below EqA claims by the individual.
    • An important area of uncertainty is whether this shift in burden of proof applies only to a direct discrimination claim, or to other disability claims as well. My view is it only applies to direct discrimination. Below Shift in burden of proof.
    • The employment tribunal in O’Sullivan (not a binding precedent) upheld claims for unlawful discrimination (under EqA ss.15, 19 and 20) in relation to an interview question which breached s.60, even though the question did not affect whether the applicant got the job, and without needing to rely on s.60. Below Equality Act claims generally.
  • There are few legal decisions on s. 60. I’m not aware of any appeal decisions setting binding precedents on how to interpret it.

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 (equalityhumanrights.com), at p.5.

Reason for s.60

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 pass over an application. It would be difficult for the claimant to show this had anything to do with the disability. See further below History.

S.60 is most useful for hidden disabilities, such as mental health conditions or diabetes. Stammering will often be evident at the interview anyway. Cf below Before interview – how helpful is s.60 for stammering?

After a conditional job offer, s.60 no longer restricts what health enquiries the employer can make (though UK GDPR still applies). However if the employer then rejects the applicant, it will clearly be related to heath or disability. The legality of this – eg whether it is proportionate under s.15 – can then be considered under the relevant EqA provisions.

10.27 This provision of the Act is designed to ensure that disabled applicants are assessed objectively for their ability to do the job in question, and that they are not rejected because of their disability. …
Employment Code of Practice, as regards s.60 EqA

Prohibition in s.60

S.60(1) says that a person (A) to whom an application for work is made must not ask about the health of the applicant (B) before offering work to B, or before including B in a pool of applicants (below) from whom A intends to select a person to whom to offer work when in a position to do so.

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

One key question is whether the employer has asked “about the health” of the job applicant. Under s.60(13) this includes whether they have a disability. The Employment Code para 10.25 says it includes a question relating to previous sickness absence. A tribunal in one case has taken quite a wide view of what is a question “about health”: see below “About health”.

EHRC guidance says that as well as written or oral questions about health put to job applicants, s.60 includes such questions put to a third party, such as a current or ex-employer (p.4 Pre-employment health questions: Guidance for employers on Section 60 of the Equality Act 2010 (equalityhumanrights.com)). So, for example, any request for a reference before the making of a job offer (or putting in a pool) should not ask about sickness absence.

The job offer may be conditional, so it would be consistent with s.60 for an employer to make a job offer subject to health enquiries, and then issue a health questionnaire.

The term “work” is wide. It can go beyond normal employment situations: below “Work”.

“About health”

S.60 EqA says that the employer must not ask “about the health” of the applicant, unless necessary for a permitted purpose. S.60(13) expressly provides that whether or not a person has a disability is to be regarded as an aspect of their health.

An employment tribunal decision has interpreted widely what is about the person’s health:

O’Sullivan v London Borough of Islington, Employment Tribunal, 2017
The claimant had an inflammatory arthritic condition. Two questions asked at the interview were:

  • “You will need to walk long distances every day do [sic] this job. What evidence can you give us that you would be able to do this?” The tribunal decided that, applying a broad interpretation to s.60, this was a question “about” the health of the candidates.
  • “What experience do you have with doing physical work out of doors? What might you need to assist you with during the course of the year?” It seemed to the tribunal that, in the context of a candidate with a physical disability, it was at least eminently arguable that this was a question “about” the health of the candidates. However the tribunal did not need to decide on this, as the claimant had scored full marks on the question.

Note: This was not an appeal decision, so is not a binding precedent.

The facts in Patterson are interesting to consider. A health questionnaire was not to be sent until after a job offer. However I would argue strongly that it was an enquiry about health, and in breach of s.60, to ask candidates before a job offer (with a “yes” tick box) whether they had any medical issues that they considered would impact their ability to undertake the position offered, or if they required any additional support. The tribunal was not asked to consider this issue:

Patterson v Essex CC (gov.uk), Employment Tribunal, 2020
The claimant applied to be a library assistant. He had Asperger’s syndrome which was accepted as a disability.

The employer sent out a “fitness to work declaration” with the application form. This asked whether the applicant had any medical issues that he considered would impact his ability to undertake the position offered, or if he required any additional support. “There was a box to tick and if yes, words next that said please request a confidential Essex County Council pre-employment health assessment form.” The tribunal found that an individual completing this form would have a reasonable expectation that the pre-employment health assessment form would be sent to them if they ticked yes.

The claimant emailed back requesting a copy of this pre-employment assessment form, saying he would be able to confirm his work-related disabilities and any additional support/reasonable adjustments after a tribunal hearing for disability-related benefits later the same month. The employer replied saying that the relevant form would be sent out only if he was a successful candidate.

The claimant seems to have argued that his request for the pre-employment questionnaire placed an obligation on the employer to make additional enquiries about his health. The tribunal pointed out that s.60 EqA restricted the employer’s ability to send out a pre-health assessment questionnaire. The tribunal said the employer was acting in accordance with the EqA in not asking for completion of the pre-employment questionnaire before the job offer being made.

This was not an appeal decision, and so is not a binding precedent. As I say above, it seems to me the question with tick-box sent out with the application form was itself a breach of s.60 EqA.

Permitted enquiries

S.60 does not apply so far as asking the question is necessary for a permitted purpose.

Even if a permitted purpose seems to apply, it is worth considering whether the question was “necessary” for that purpose. An employment tribunal held that two questions were not: below “Necessary”.

The most important permitted purposes are broadly:

  • establishing whether the employer has a duty to make reasonable adjustments in connection with an interview or other assessment in the recruitment process;
  • establishing whether the applicant will be able to carry out a function intrinsic to the work concerned, after reasonable adjustments if the employer reasonably believes the adjustment duty would apply; and
  • monitoring diversity.

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.
Equality Act 2010 Explanatory Notes, para 202 (legislation.gov.uk).

The EHRC’s Pre-employment health questions: Guidance for employers on Section 60 of the Equality Act 2010 (equalityhumanrights.com) at p.10 recommends that an employer clearly explains when exceptions to s.60 are being used, and why the employer believes it is necessary to ask disability- or health-related questions. This point is also made in an example on p.8.

Full list of permitted pre-employment enquires

Where A is the employer and B is the job applicant, in broad terms s.60 does not apply so far as asking the question is “necessary for the purpose of”:

  • establishing whether B will be able to comply with a requirement to undergo an interview or other process designed to give an indication of suitability for the work (s.60(6)(a) and (12));
  • 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 process designed to give an indication of suitability for the work (s.60(6)(a) and (12));
  • establishing whether B will be able to carry out a function that is intrinsic to the work, after making any reasonable adjustments if A reasonably believes an adjustment duty would be imposed in connection with the work (s.60(6)(b) and (7)) – below Intrinsic job functions;
  • monitoring diversity in the range of persons applying to A for work (s.60(6)(c)) – below Monitoring diversity;
  • taking “positive action” in relation to disability within s.158 EqA (s.60(6)(d)) – below Guaranteed interview scheme; or
  • if A applies a requirement to have a particular disability, establishing whether B has that disability (additional tests apply) (s.60(6)(e) and (8)).

Two further exceptions from s.60:

  • S.60 does not apply to anything done for the purpose of vetting applicants for work for reasons of national security (s.60(14)).
  • EqA Sch 22 para 1 gives an exception for (broadly) anything the employer must do pursuant to a requirement specified in other legislation. An EHRC decision has considered this exception. See below Exception for legal requirements.

“Necessary”

The question must be “necessary” for the purpose of one of those exceptions. I’m not aware of any appeal court decisions on what this means in the context of s.60. One employment tribunal decision (not a binding precedent) held that on the facts it was not “necessary” to ask two questions about intrinsic job functions at interview. They had been, or could have been, assessed on the application form:

O’Sullivan v London Borough of Islington, Employment Tribunal, 2017
The claimant had an inflammatory arthritic condition. The employer’s person specification listed 17 “Requirements”, indicating whether each would be assessed on the application form, at interview, or by reference to both. Regarding whether two questions asked at the interview were permitted by s.60:

  • The employer had listed a requirement about walking long distances as something to be assessed only on the application form. The tribunal held it was not “necessary” to ask a question (question 3) about this at the interview. Its subject matter had been assessed at the short-listing stage on the basis of the written application, precisely as the recruitment scheme envisaged.
  • The employer had listed a requirement about doing physical work out of doors as something to be assessed both on the application form and at the interview. The tribunal held it was not “necessary” to ask a question (question 2) about this at the interview, even though it went to the very essence of the role and was marked on the recruitment scheme as for assessment both on the application form and at interview. The tribunal said its subject matter could have been assessed through the application form alone.

Note: This was not an appeal decision, so is not a binding precedent.

Intrinsic job functions

Under s.60(6)(b), s.60 does not prohibit a question so far as it is necessary for the purpose of establishing whether the job applicant will be able to carry out a “function that is intrinsic to the work concerned”. So far as I know, there has not really been any useful discussion in cases of what “intrinsic” means in s.60: though see O’Sullivan below and this EHRC decision.

Under s.60(7), what is a function intrinsic to the work is, broadly, to be viewed after any reasonable adjustments to the work, if the employer reasonably believes there would be a duty to make reasonable adjustments. Some points and issues on this:

  • S.60(7) does not expressly say the employer can ask what reasonable adjustments the job applicant would need (if it believes the adjustment duty arises). However asking this – as regards intrinsic functions – is likely to be necessary to help establish whether the applicant would be able to carry out intrinsic functions after reasonable adjustments.
  • Read literally, the effect of “reasonably” seems to be that the employer cannot ask about reasonable adjustments (or intrinsic functions as they would be after adjustments) if the employer’s belief that the duty would arise is not reasonable. I don’t really understand why s.60 should say that. Why should the employer not consider (including before a job offer) adjustments not required by the EqA?
  • Again reading s.60(7) literally, oddly it seems that intrinsic functions would not be viewed subject to reasonable adjustments if the employer did not believe but should reasonably have known or believed that the reasonable adjustment duty would apply. Possibly that’s what the word “reasonably” was intended to cover, but it’s not what s.60(7) says.
  • What if an employer reasonably believes there may be a duty to make reasonable adjustments? For example it might be unclear whether the job applicant would be at a disadvantage in the workplace so as to require adjustments, or it might be unclear whether their health condition is a disability within the EqA. Or what if the employer is willing to consider adjustments whether or not there is technically a disability?
  • Presumably s.60(7) does not apply until the employer (reasonably) believes there would be a reasonable adjustment duty. So it seems an application form could not ask candidates generally to tell the employer of any adjustments they would need in the job. If a job applicant does give the employer information about a disability, this might give rise to a belief on the part of the employer which results in s.60(7) starting to apply.
  • See discussion of how far the employer might have been allowed to clarify whether adjustments were needed where the employer understood an interviewee to say – in connection with his stammer – that he could do a telephone job fine: A v Pennine Care NHS Foundation Trust>Comments: Pre-employment enquiries and s.60 EqA.
  • Arguably (but it is not clear) it should not matter that the employer believes no adjustments would be reasonable.

As can be seen, I think there is considerable uncertainty on how these provisions apply!

The Employment Code says as regards asking about reasonable adjustments required in the job:

  • Where a disabled applicant voluntarily discloses information about their disability or health, the employer may respond only by asking permitted questions, for example by asking further questions about reasonable adjustments that would be required to enable the person to carry out an intrinsic function of the job: para 10.37.
    • As an example (still in para 10.37): If at a job interview for a research post, a disabled applicant volunteered that he would need to use voice-activated computer software, it would not be lawful under s.60 for the employer to respond by asking: “Why can’t you use a keyboard? What’s wrong with you?” The requirement intrinsic to the job is the ability to produce research reports and briefings, not the requirement to use a keyboard. The employer could for example ask about the type of adjustment that might be required to enable him to prepare reports and briefings. (There is a similar example on p.8 of the EHRC’s Pre-employment health questions: Guidance for employers on Section 60 of the Equality Act 2010 (equalityhumanrights.com).)
  • Questions about reasonable adjustments needed for the job itself should not be asked until after the offer of a job has been made, unless the questions relate to a function that is intrinsic to the job: para 10.30.
  • This permitted purpose (intrinsic 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 10.38.

Investigation finds care agency’s recruitment practices were unlawful (equalityhumanrights.com) and download investigation report, 2021
A care agency sent out a medical questionnaire to potential recruits before making a job offer. Among other things, this asked whether they had ever had a number of health conditions. The Equality and Human Rights Commission (EHRC) found that the care agency had breached s.60.

The EHRC considered whether the health questions were allowed by the “intrinsic function” exception in s.60(6)(b) EqA, or by requirements in health and social care regulations (above). However, said the EHRC, these only appled “where the questions relate to intrinsic functions of the role. It would need to be clear what the intrinsic functions are and how the questions are relevant to them. [The care agency] did not respond when we asked it to provide this information.”

Monitoring diversity

S.60(6)(c) 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 (it may not be possible for a small employer), and that it is a breach of s.60 to use monitoring information about health and disability to shortlist candidates: see particularly examples 6 and 7 (pp.7-8) in Pre-employment health questions: Guidance for job applicants on Section 60 of the Equality Act 2010 (equalityhumanrights.com). However, what is a breach of s.60 will need to be decided by the courts. While I can’t personally see how using monitoring information in this way would be a breach of s.60 as such, I can see that doing so (a) would be an indication that asking for the information was not really necessary for monitoring, and (b) is likely to be unlawful discrimination, for example direct discrimination under s.13 EqA (eg stereotyping).

Under this “monitoring diversity” head, it is presumably “necessary” only for the employer to ask about whatever general 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, say.

Guaranteed interview scheme

Under s.60(6)(d) the permitted purposes include taking “positive action” within s.158 EqA. It seems this is intended (among other things) to allow enquiries about whether the job applicant is entitled to a guaranteed interview under “Disability Confident”.

In line with this, 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. It adds that the employer should make clear that this is the purpose of the question.

(Personally I am not sure if technically s.60(6)(d) EqA 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), which with s.159(3) excludes from s.158 treating someone more favourably in connection with recruitment or promotion.)

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

A stammer will usually be apparent anyway 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 it before this.

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 invited for an interview. See further Recruitment: Should I tell the employer I stammer?

If the person who stammers does not want to request reasonable adjustments for the interview etc, this is not an issue and s.60 may help get an interview without the stammer getting in the way. (However see Recruitment: Should I tell the employer I stammer? on benefits of telling the employer about the stammer, at some stage at least.)

If the job applicant does want to request reasonable adjustments in the interview etc, and does so when putting in the job application, s.60 – or at least guidance on it – could help if the employer follows the 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 of the Employment Code

This statement in the Code will be more relevant for larger employers, as it will be easier for them to ensure that information on reasonable adjustments does not go to the people who select applicants for interview.

Voluntarily mentioning a stammer

The Employment Code at para 10.37 makes the point that where a disabled job applicant voluntarily discloses information about their disability, the employer must ensure that in response they only ask further questions that are permitted by s.60.

People who stammer can find it helpful at an interview to mention the stammer, partly to “clear the air” on it: Recruitment: Should I tell the employer I stammer? However, in the light of s.60, interviewers may now be wary in how they respond, at least as regards asking questions about the stammer. People who stammer may wish 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 s.60. (Even before s.60, some interviewers may have been cautious because they would not want to ask a question that could seen as discriminatory or offensive.)

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

The employer may well be entitled to ask questions about reasonable adjustments that would be required to enable the person to carry out an intrinsic function of the job (above).

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.

As well as my discussion above, some examples of what the EHRC considers an employer can and cannot ask at an interview are given in Pre-employment health questions: Guidance for job applicants on Section 60 of the Equality Act 2010 (equalityhumanrights.com), pages 8-9.

Pool of applicants

The general rule is that non-permitted questions cannot be asked before a job offer, conditional or otherwise. It is different if the employer is not in a position to offer work to the job applicant 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 job applicant is included in the pool (s.60(1)(b)).

“Work”

S.60 applies where an “application for work” is made. Under s.60(9), “work” has an unusually wide meaning.

Firstly “work” includes “employment”, which in the EqA goes well beyond “employees” in the normal legal sense. Employment/employees in the EqA also includes “workers”, for example many gig economy workers. See Employees, workers and beyond>Definition of “worker”.

Secondly, s.60(9) lists various further things which are to be included as “work”, namely “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 brings in barristers and their pupils (Equality Act 2010 – there is an actual devil in the detail (archive of blog.usefullyemployed.co.uk)).

Example: 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”).

EqA Sch 22 para 1 gives an exception – including from s.60 – for (broadly) anything the employer must do pursuant to a requirement specified in other legislation.

The EHRC found that this did not apply (at least on the facts) in a case involving health and social care regulations:

Investigation finds care agency’s recruitment practices were unlawful (equalityhumanrights.com) and download investigation report, 2021
A care agency sent out a medical questionnaire to potential recruits before making a job offer. The Equality and Human Rights Commission (EHRC) found that the agency had breached s.60 EqA. Neither the exception for intrinsic job functions (above) nor EqA Sch 22 para 1 permitted the questionnaire.

As to Sch 22 para 1, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (legislation.gov.uk) required care providers to ensure that people they employed were capable “by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the work for which they are employed”, and to obtain information about this as part of their recruitment process. However, said the EHRC, this only applied where the questions related to intrinsic functions of the role. “It would need to be clear what the intrinsic functions are and how the questions are relevant to them. [The care agency] did not respond when we asked it to provide this information.”

The EHRC pointed out that s.60 would allow enquiries in the application form or at the interview so as long as the employer only asked relevant and necessary health questions related to the identified intrinsic tasks of the job. S.60 would also allow the employer to make a conditional offer of employment subject to relevant health enquiries.

As an example of where EqA Sch 22 para 1 can create an exception to s.60, the EHRC explained: “For example, Merchant Shipping Regulations do not allow the employment of seafarers unless they have a valid medical fitness certificate.”

It added: “When asking pre-employment health questions in line with a legal requirement, organisations must limit their questions to what is required.”

Note: See too above on the care agency’s medical questions not being permitted under s.60(6)(b) as necessary for an intrinsic job function.

Enforcement by EHRC

The ban in s.60 can be directly enforced only by the Equality and Human Rights Commission (EqA s.60(2), s.128(8)). An example of the EHRC enforcing s.60 is:

Investigation finds care agency’s recruitment practices were unlawful (equalityhumanrights.com) and download investigation report, 2021
A care agency sent out a medical questionnaire to potential recruits before making a job offer. The Equality and Human Rights Commission (EHRC) found that it had breached s.60.

See above on the EHRC’s decision that the neither the “intrinsic function” exception in s.60 nor requirements in health and care regulations allowed the medical questions.

The care agency had now removed the questions from its job application form, so the EHRC did not require it to prepare an action plan for the purpose of avoiding repetition or continuation of the unlawful act.

EqA claims by the individual

Summary on claims by individual

Essentially, an individual cannot claim under s.60, so any claim needs to be under one of the normal EqA provisions. However where there is a breach of s.60, that may shift the burden of proof to the employer, so that it is for the employer to show there was no unlawful discrimination.

The job applicant cannot claim to an employment tribunal for breach of s.60 as such: below No claim by individual simply for breach of s.60.

However on a tribunal claim for conduct in reliance on information given in response to a question not permitted by s.60, the burden of proof shifts to the employer to show that there was no unlawful discrimination – perhaps only for direct discrimination claims (s.13), or perhaps for other disability claims as well: below … but shift in burden of proof.

Since a job applicant cannot claim for breach of s.60 as such, the essential question is whether the facts give rise to a claim under another EqA provision such as discrimination arising from disability (s.15), failure to make reasonable adjustments (s.20), or direct discrimination (s.13), with or without a shift in burden of proof by virtue of s.60. In O’Sullivan an employment tribunal held that the employer had asked a question not permitted by s.60. The tribunal upheld claims under ss.15, 19 and 20 EqA even though the question made no difference to whether the claimant got the job, and said that these claims would have succeeded without s.60. Below Equality Act claims generally.

No claim by individual simply for breach of s.60

Under s.120(8) and s.60(2), it seems that an employment tribunal does not have jurisdiction to consider a contravention of s.60(1). Effectively this means the tribunal cannot consider any contravention of s.60, since it is subsection (1) that stipulates employers must not ask about job applicants’ health. So a job applicant cannot claim to an employment tribunal for breach of s.60 as such

Moreover, s.60(3) says that the employer does not contravene a “relevant disability provision” (below) merely by asking about the applicant’s health; but the employer’s conduct in reliance on information given in response may be a contravention of a “relevant disability provision”.

O’Sullivan v London Borough of Islington, Employment Tribunal, 2017
The tribunal’s view of EqA s.60(2)(3) was that no EqA claim can be mounted on the simple act of asking a question about a candidate’s health, but where such a question is asked and reliance placed on the answer, claims under ss.13, 15, 19 and/or 20-21 EqA may be brought (direct or indirect discrimination, discrimination arising from disability, and/or reasonable adjustments). The tribunal gave a wide meaning to “relevant disability provision” (below).

… but shift in burden of proof

S.60(4)(5) goes on to say, basically, that if the job applicant complains to an employment tribunal that the employer’s conduct in reliance on information given in response to a non-permitted question about the applicant’s health is a contravention of a “relevant disability provision” (below), the burden of proof shifts to the employer under s.136 EqA (Proving discrimination>Shift in burden of proof). Effectively, because of the non-permitted question, the claimant is seen as having made out a prima facie case that there was unlawful discrimination. So the tribunal must hold that the contravention occurred unless the employer shows on a balance of probabilities that it did not contravene the relevant disability provision.

As discussed under “relevant disability provisions” below, It is not clear whether this shift in burden of proof applies only to direct discrimination claims, or to disability discrimination claims more generally.

A case where only direct discrimination was at issue:

Spinelli v Dabke (gov.uk), Employment Tribunal, 2021
A mother was recruiting an after-school nanny for her children. The claimant had an autoimmune disorder, which the tribunal found to be a disability. After the mother heard about about this health condition, a trial session with the claimant was postponed, and then a different nanny was appointed. The tribunal claim was for direct discrimation (s.13).

The tribunal found that the mother had made an enquiry about the claimant’s health in breach of s.60. Therefore the shift in burden of proof applied. The tribunal said: “It is now for the [employer] to establish that it did not make stereotypical assumptions about the claimant’s condition. … It is then for the [employer] to demonstrate that the claimant’s disability was in no sense whatsoever connected to the decision to withdraw or not to honour the offer of a job trial. …” The tribunal held that the mother had not discharged the burden of proof. The claim for direct discrimination succeeded.

The tribunal also said it was satisfied that the claimant had proven facts from which the tribunal could reasonably conclude that the reason for the treatment complained of was the claimant’s disability. This seems to mean the burden of proof would have shifted to the employer under s.136 even without s.60 (Proving discrimination>Shift in burden of proof).

This was not an appeal decision, and so is not a binding precedent.

What is a “relevant disability provision”?

It is not clear whether only direct discrimination is included as a relevant disability provision (in which case the shift in burden of proof would only apply to a direct discrimination claim), or whether the phrase includes disability discrimination claims more generally.

S.60(11) says “The following, so far as relating to discrimination within section 13 because of disability, are relevant disability provisions— ….”. There follows a list of provisions making “discrimination” unlawful in numerous employment-related areas such as contract work and partners etc, corresponding with the wide meaning of “Work”, above. S.13 EqA relates only to direct discrimination, so I had always understood – and I still think – that “relevant disability provisions” includes only claims for direct discrimination. However an employment tribunal has disagreed:

O’Sullivan v London Borough of Islington, Employment Tribunal, 2017
The tribunal’s view was that as well as s.13, “relevant disability provisions” in s.60 also includes s.15 (discrimination arising from disability), s.19 (indirect discrimination) and ss.20-21 (reasonable adjustment duty).

For some reason (unclear), however, the tribunal did not actually apply the shift in burden of proof (above) to the claims under any of those provisions. It upheld claims under ss.15, 19 and 20-21 in respect of one of the interview questions, and said that those claims would have succeeded without s.60.

Note: This decision was not an appeal decision, and so is not a binding precedent.

Presumably the tribunal saw s.60(11) as defining only what are “relevant disability provisions” in relation to s.13, and leaving open what else may be relevant disability provisions. I do find the tribunal’s interpretation odd. I don’t see why the only type of discrimination mentioned by the draftsperson in s.60(11) should be s.13, if “relevant disability provisions” includes other types of discrimination. If ss.15, 20 etc were also relevant disability provisions, it would be consistent with the wide meaning of “Work” in s.60(9) for the provisions listed in s.60(11) to also apply in relation to ss.15, 20 etc, as well as to s.13. Having said that, I can see why it would be strange for s.60(3) not to apply more widely than direct discrimination.

Equality Act claims generally

Since a job applicant cannot claim for breach of s.60 as such, the essential question will be whether the facts give rise to a claim under other EqA provisions such as ss.13, 15, 19, 20 or 26, perhaps aided by a shift in burden of proof (above) under s.60.

Rejecting a job applicant is the most obvious conduct of the employer – in reliance on the response to an unpermitted question – for which the applicant might claim discrimination. Again any shift in burden of proof under s.60 may help, for example it might be for the employer to show that it was not the candidate’s response to the question that led to their rejection.

However an employment tribunal has held an employer liable even though its scoring of the response to the unpermitted question made no difference to whether the job applicant was appointed. He would have been rejected even if his response to it had scored full marks::

O’Sullivan v London Borough of Islington, Employment Tribunal, 2017
The claimant had an inflammatory arthritic condition. The tribunal held that an interview question (question 3) about having to walk long distances was not permitted by s.60. The question was about something which under the employer’s recruitment scheme was to be assessed only on the basis of the written job application, not at the interview. The tribunal decided that the interview question was not “necessary” for the purpose of establishing whether the claimant could perform an intrinsic job function, because its subject matter had been assessed at the short-listing stage based on the written application, precisely as envisaged by the recruitment scheme.

The interviewers scored the claimant 3 out of 5 for his response to this question. Even if the claimant had been awarded 5 points (full marks) for that question, he would still have been one point below the lowest scoring candidate to be awarded a job.

The tribunal upheld his claims under EqA ss.15, 19 and 20 in respect of this question. It added that these claims would have succeeded without s.60. In brief:

  • Discrimination arising from disability (s.15): The unfavourable treatment was the lower scoring in relation to this question, where the claimant dropped two marks and lost way against the leading candidates. This was plainly “because of something arising in consequence of” his disability. The employer could not justify it as there was no need to ask the question at all. The question of mobility could and should have been assessed in accordance with the recruitment scheme, on the paper application alone.
  • Indirect discrimination (s.19): The “provision, criterion or practice” (PCP) seems to have been the requirement for candidates to answer this question, or applying a criterion of mobility at the interview stage. This PCP self-evidently placed those with whom the claimant shared his characteristic of disability (and the claimant himself) at a particular disadvantage, because such persons were less likely to be able to deliver top-scoring answers. The PCP was not justified for the reasons already developed in relation to the s.15 claim.
  • Reasonable adjustments (s.20): The tribunal found that the PCP of applying a criterion of mobility at the interview stage put the claimant at a substantial disadvantage, so the reasonable adjustment duty arose. A reasonable adjustment here would be to delete the scores of all candidates for this question.
  • In contrast, the tribunal rejected a claim for direct discrimination (s.13). If a non-disabled comparator had answered the question in the same way as the claimant, the employer would have treated them in the same way.

The claimant had argued that another question (question 2) was also not permitted by s.60. The tribunal said it did not matter whether this question was permitted, because the claimant was in any event given full marks for his answer to it. He therefore suffered no adverse consequence resulting from the employer’s reliance on his answer. There was no detrimental, or less favourable, treatment (for the purposes of direct discrimination under s.13), no unfavourable treatment (for the purposes of discrimination arising from disability under s.15) and no disadvantage (for the purposes of indirect discrimination under s.19 and failure to make reasonable adjustments under s.20).

Note: This was not an appeal decision, so is not a binding precedent.

Where, like here, the lower score for a question made no difference to whether the person got the job, it may still be disputed in future cases whether the lower score is to be seen as unfavourable treatment or a “disadvantage” so as to give possible claims under s.15, 19 and 20. Assuming the lower score is unfavourable treatment etc, any compensation is likely to be limited if it made no difference to getting the job – as the tribunal in O’Sullivan commented.

S.15 (disability arising from disability) could potentially apply even if the question is asked only to the claimant, since s.15 is based on “unfavourable treatment” of the claimant. On the other hand, s.20 (reasonable adjustment duty) and s.19 (indirect discrimination) would need there to be a “provision, criterion or practice” (PCP) of the employer, most obviously a PCP of asking the relevant question to all candidates for the job, as happened in the O’Sullivan case. The employer would have a defence if it could show justification, or that an adjustment was not reasonable.

The tribunal in O’Sullivan said those claims would have succeeded without s.60 (it did not apply the shift in burden of proof). Is s.60 relevant apart from any possible shift in the burden of proof? Perhaps whether a question was permitted under s.60 could at least be relevant to whether relying on the answer to it was unfavourable treatment or a disadvantage under ss.15, 19 and 20, and relevant to whether relying on the answer was justified or how far adjustments were reasonable.

In the same way that the tribunal in O’Sullivan (and apparently Spinelli) would have upheld the claims without s.60, it may be possible for a claim under EqA ss.13, 15, 19, 20 or 26 to succeed even in respect of a question which is not banned by s.60.

UK GDPR (data protection)

This is separate from s.60 EqA, but also relevant to questions on health. Health information is subject to particular restrictions under UK GDPR, the main legislation on data protection. Health information is “special category data”, so organisations processing it need to meet one of the conditions in Article 9, as well as having a lawful basis under Article 6. There are differences between information held by employers and that held by occupational health.

Also the general data principles in Article 5 of UK GDPR apply. For example under Article 5(1)(c) personal data must be adequate, relevant, and limited to what is necessary in relation to the purposes for which they are processed (“data minimisation”). See eg pages 13-15 of the draft guidance linked below.

In October 2022, the Information Commissioners Office issued draft employment practices guidance on information about workers’ health (ico.org.uk), for consultation.

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 (parliament.uk), 2009.

The former Disability Rights Commission also believed that disability-related enquiries before a job was 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 enabled employers who wished to discriminate to simply reject disabled applicants at an early stage. If an employer did not know that an individual had a disability, they would be unable to make prejudiced judgements on this basis. (A Framework for Fairness Response, 2007, pages 26-27).

Disability Rights Taskforce

A provision of this sort had previously been recommended by the Disability Rights Taskforce (pdf, dera.ioe.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 Taskforce’s report. Its report 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 also recommended that there should be rules on confidentiality of information obtained for monitoring purposes. This is not explicitly covered by the Equality Act, assuming the Taskforce’s idea was that the information should be confidential from interviewers. There is EHRC guidance on it though. See above Monitoring diversity.

20th anniversary of stammeringlaw, 1999-2019