The claimant had an inflammatory arthritic condition. In a job interview the employer asked a question about the need to walk long distances every day, and scored the claimant’s response 3 out of 5. The tribunal held this question was in breach of s.60 Equality Act (EqA) which concerns making enquiries about health before a job offer (see Pre-employment enquiries). That did not in itself give a claim under the EqA. However the tribunal went on to hold that his claims under ss.15, 19 and 20 EqA succeeded in respect of that question. These claims would have succeeded without s.60. My comments are below.
2017, Employment Tribunal. Full decision (gov.uk).
Facts
The claimant had previously been a caretaker in Ealing, but retired on medical grounds due to an inflammatory arthritic condition. With medical treatment, he had now recovered sufficiently to feel able to return to the job market. It was not disputed that his condition was still a disability within the Equality Act (EqA). (§2, 28)
He applied to the London Borough of Islington (“the employer”) for a job as a part-time Estate Operative. There were three vacancies. The person specification listed 17 “Requirements”, indicating whether each would be assessed on the application form, at interview, or by reference to both. One requirement, for assessment on the application form and at interview, was: “The experience and the ability to work outside in all weathers all day whilst carrying, bending, lifting, pushing and pulling”. Another, for assessment on the application form alone, was: “The ability to walk long distances and remain on your feet all day”. (§4, 27)
The claimant was shortlisted for interview based on his application. He was ranked fifth among the 16 candidates invited to interview. At the interview the candidates were asked nine set questions, and were scored out of five against each. Two questions about which the claimant complained to the tribunal were (§30-33):
- Question 2: “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?” The interviewers scored his answer 5 out of 5 (so full marks).
- Question 3: “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 interviewers scored his answer 3 out of 5.
The claimant was awarded 36 points and was not given a job. The lowest score awarded to a successful candidate was 39 (§34). The employer’s feedback to the claimant included that his interview was very good and he was high on the reserve list (§43).
A couple of years earlier, the claimant had won a disability discrimination claim against the employer, when it had withdrawn a job offer. The tribunal had found that the withdrawal was at least materially influenced by his disability-related sickness absence record when working for Ealing (§3).
Held by the employment tribunal: He succeeded in his claims under s.15 (disability arising from disability), s.19 (indirect discrimination) and s.20 (reasonable adjustment duty).
Decision: s.60 Equality Act
S.60 Equality Act 2010 (EqA) limits how far employers are allowed to ask a job applicant about health or disability before making a job offer. See Pre-employment enquiries.
Interpretaton of s.60
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 20-21 EqA may be brought (direct or indirect discrimination, discrimination arising from disability, or reasonable adjustments). Under s.60(11), said the tribunal, “relevant disability provisions” are not confined to s13 (direct discrimination) – ss.15, 19 and 20-21 were also relevant disability provisions. (§19-21)
Were questions 2 and 3 permitted under s.60?
S.60 says that generally employers “must not ask about the health of the applicant” before making a job offer, and that whether or not someone has a disability is to be regarded as an aspect of their health (s.60(1)(13)). However s.60 does not apply to a question in so far as asking it is necessary for the purpose of (among other things) establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned (s.60(6)(b)). See Pre-employment enquiries.
The tribunal decided that, applying a broad interpretation to s.60, question 3 (walking long distances) was a question “about” the health of the candidates. Further, the tribunal was clear that it was not ‘necessary’ to ask question 3 at interview (s60(6)(b)). The question’s subject matter had been assessed at the short-listing stage on the basis of the written application, precisely as the recruitment scheme envisaged. A return to the subject of the claimant’s ability to walk long distances was entirely
unnecessary. (§46-47)
As to question 2 (doing physical work out of doors), it seemed to the tribunal that, in the context of a candidate with a physical disability, it was at least eminently arguable (the tribunal did not need to decide) that this was a question “about” the health of the candidates. Also, although it was a question which 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 did not regard the question as “necessary”. Its subject matter could have been assessed through the application form alone. However bearing in mind that the simple act of asking about health was not enough to found a claim (Interpretation of s.60, above), it did not help the claimant if question 2 was not permitted by s.60. He was given full marks for his answer to question 2, so he suffered no adverse consequence resulting from the employer’s reliance on his answer to it. There was no detrimental, or less favourable, treatment (for the purposes of the direct discrimination claim), no unfavourable treatment (for the purposes of the discrimination arising from disability claim) and no disadvantage (for the purposes of the indirect discrimination and failure to make reasonable adjustments claims). (§46, 48)
Since therefore only question 3 was relevant, the tribunal asked: “What, if any, is the consequence of the applicability of the prohibition enacted by s.60 in the case of question 3? Our reasoning will be developed as we consider each of the claims in turn.”
Decision: Direct discrimination (s13)
See Direct discrimination. Also under s.60(4)(5), broadly speaking, if the applicant claims that the employer’s conduct in reliance on information given in response to a question not permitted by s.60 is a contravention of a relevant disability provision, then the burden of proof shifts to the employer to show it was not unlawful discrimination: see Pre-employment enquiries>EqA claims by the individual.
The direct discrimination claim failed.
The claimant’s lawyer submitted that under s.60(5) EqA the burden of proof had been shifted to the employer and that the employer could not discharge it (§50).
The tribunal rejected this argument. The fundamental difficulty with the direct discrimination claim was that there was no plausible ground for the theory that a non-disabled individual whose circumstances were otherwise the same as the claimant’s, would have been treated more favourably. On all questions other than question 3, the tribunal found no basis for saying that the claimant was disadvantaged in any way. In the case of question 3, the tribunal saw “no possible basis for supposing that a non-disabled comparator answering the question as the Claimant did would have received more favourable treatment. Such a candidate, not being able to point to high levels of physical fitness and activity, would have received precisely the same score as the Claimant did. Accordingly, while the [employer] did, of course, place reliance on the Claimant’s answer to question 3, that fact does not assist him in relation to direct discrimination.” (§50-52)
Decision: Discrimination arising from disability (s.15)
Discrimination arising from disability under s.15 EqA is where an employer etc someone treats a disabled person unfavourably because of something arising in consequence of the disability. The employer is liable if it has actual or constructive knowledge of the disability and cannot show that the unfavourable treatment was justified.
The claim for discrimination arising from disability succeeded. The unfavourable treatment was the lower scoring in relation to question 3, where the claimant dropped two marks and lost way against the leading candidates. But he suffered no other unfavourable treatment. It was because the employer placed reliance on the information elicited by question 3 that he suffered that unfavourable treatment. (§53-55)
The unfavourable treatment was plainly “because of something arising in consequence of” his disability. Although the claimant did his best to keep himself fit and mobile, his disability put limits on the extent to which he could engage in sports and other physical activities. Other candidates deploying gym memberships or sporting hobbies such as cycling were able to register higher scores. (§53)
Could the employer justify the treatment complained of as a proportionate means of achieving a legitimate aim? In the tribunal’s view, plainly the answer was no. There was no need to ask question 3 at all (see above). The question of mobility could and should have been assessed in accordance with the recruitment scheme, on the paper application alone. (§53)
The tribunal noted that the third-placed candidate (given one of the three jobs) scored 39, so the claim for substantial compensation was really about whether, absent any material defect, the claimant might have tied
with, or overhauled, that third-placed candidate. (footnote 4)
Decision: Indirect discrimination (s.19)
Indirect discrimination is broadly where an employer etc applies a provision, criterion or practice (PCP) to people generally, but the PCP puts people with a particular disability (including the claimant) at a particular disadvantage in comparison with people who do not have that disability, and the employer is not able to show the PCP is justified, ie a proportionate means of achieving a legitimate aim.
The claim for indirect discrimination succeeded. As to what was the relevant PCP, the employer applying a criterion of mobility was in principle unobjectionable, but its method of doing so involved including question 3 among the interview questions. Doing this self-evidently placed those with whom the claimant shared his characteristic of disability at a particular disadvantage, because such persons were less likely to be able to deliver top-scoring answers than candidates with no disability. (§56-58)
Also the PCP placed the claimant himself at that disadvantage. His capacity to score strongly, relative to the competition, was diminished. (§57)
The tribunal held the PCP was not justified as a proportionate means of achieving a legitimate aim, for the reasons already developed in relation to the s.15 claim. (§57)
Although, the indirect discrimination claim based on the requirement for the candidates to answer question 3 was therefore well-founded, the “principal disadvantage” relied on by the claimant, namely non-selection for the post, was not made out since, had question 3 been omitted, the result of the competition would have been the same. (§58)
Decision: Reasonable adjustments (s.20)
Where any “provision, criterion or practice” (PCP) applied by or on behalf of an employer puts a disabled person at a substantial (ie more than minor or trivial) disadvantage in comparison with persons who are not disabled, the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage: Reasonable adjustment rules: employment. The employer has a defence if it did not have actual or constructive knowledge of the disability and disadvantage.
The claim for failure to make reasonable adjustments succeeded.
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 duty to make adjustments arose. (§60)
What was a reasonable step in the circumstances? It was no answer to say that question 3 should not have been asked at all, since the fact that it was asked was what gave rise to the duty. The tribunal considered the right way to avoid the disadvantage was to delete the question 3 scores of all candidates. Since the question should not have been asked, it was fair and reasonable simply to disregard all scores, whether favourable, unfavourable or neutral. The tribunal noted that this would still leave the claimant one point below the lowest scoring succesful candidate. (§60-61)
Decision: Victimisation (s.27)
Victimisation is broadly where an employer etc “punishes” a person because of making or being involved in a discrimination claim.
This claim failed. The tribunal said that plainly, the protected acts (his previous disability discrimination claim against Islington) did not bring about, or materially influence, the decision to appoint the successful candidates in preference to the claimant. That decision was based on the total scores and would have been the same had question 3 not featured in the interview. It was highly unlikely that the decision to include question 3 and the act of relying on the answer was materially influenced by the fact that the claimant had brought the earlier claim. (§62)
Outcome and remedy
For the reasons stated, the claims under ss.15, 19 and 20-21 succeeded in respect of question 3 only. They would have succeeded without s.60. (§63)
The tribunal said the “result leaves the Claimant with a narrow range of modest remedies”, presumably because even without question 3 he would not have been appointed. If the parties could not agree remedies, a hearing on them would be arranged. (§64)
My comments
Comments: Summary
This decision is not a binding precedent, as it is not an appeal decision. Appeal courts (and other employment tribunals) may take a different view, if and when they consider the issues discussed.
The tribunal took quite a strict view of s.60 EqA, in the sense of tending to narrow what questions about health employers are allowed to ask. The tribunal found that merely asking a question in breach of s.60 did not give rise to an EqA claim, but its decision seems to imply that if an employer has not complied with s.60, a shift to the employer of the burden of proof (potentially making it easier for a claimant to succeed in a claim) can apply not just to direct discrimination but also to other types of disability claim including ss.15, 19 and 20. Below Applying s.60 EqA. (My web page on s.60 is Pre-employment enquiries.)
Having found that question 3 in this case was not permitted by s.60, the tribunal held that various claims under other EqA provisions were successful, and would have been successful without s.60. The decision seems to suggest that even without s.60, and even if the question did not make a difference to whether the person was appointed, relying on an answer to a question about health or disability may potentially give rise to an EqA claim under ss.15, 19 and/or 20. Below Successful claims under ss.15, 19 and 20.
Comments: Not a binding precedent
This is not an appeal decision, and so does not bind other employment tribunals. It is important to bear in mind that an Employment Appeal Tribunal or other appeal court may reach different decisions on the issues discussed in this case, including on the interpretation of s.60 EqA. Indeed so may future employment tribunals, in the absence of appeal court decisions.
Comments: Applying s.60 EqA
S.60 EqA limits how far employers are allowed to ask a job applicant about health or disability before making an offer. See Pre-employment enquiries.
This tribunal decision is of some interest because there are so few decisions discussing s.60. Some particular points from the decision are:
- The tribunal adopted a wide interpretation of what is a question “about the health of the applicant”. It decided that the question “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?” met this test of being about health, and it was at least eminently arguable that in the context of a candidate with a physical disability “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?” met the test. Above Were the questions permitted under s.60? Generally on this: Pre-employment enquiries>”About health”.
- Also in favour of the claimant, the tribunal took quite a strict approach in deciding whether questions were “necessary” for the purpose of establishing whether candidates would be able to carry out a function intrinsic to the work. Question 3 was unnecessary, said the tribunal, given the employer’s own published scheme of testing the relevant requirement only in the application form. More surprising to my mind is the tribunal’s view that question 2 was also unnecessary (the employer’s plan was to test this requirement at interview as well in the application form). Above Were the questions permitted under s.60? Generally on this: Pre-employment enquiries>”Necessary”.
- The tribunal’s view 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 direct or indirect discrimination, discrimination arising from disability, or reasonable adjustment claims can be brought. Under s.60(11), said the tribunal, “relevant disability provisions” are not confined to direct discrimination. Above Interpretaton of s.60. I would comment on this:
- I’d always understood that “relevant disability provisions” under s.60(11) includes only direct discrimination (s.13). The tribunal evidently disagrees. For discussion see Pre-employment enquiries>”Relevant disability provisions”.
- Having decided that “relevant disability provisions” covers other disability claims as well as direct discrimination, the tribunal does not seem to draw the consequences in the rest of its decision. One would think that on the tribunal’s interpretation of “relevant disability provisions”, if the employer fails to comply with s.60, then for all disability claims the burden of proof would shift to the employer under s.60(4)(5) with s.136 – ie the burden would be on the employer to show there was not unlawful discrimination: see Pre-employment enquiries>Shift in burden of proof. However for most claims (claims other than direct discrimination) the tribunal does not consider this issue. Possibly this was because the claimant’s lawyer had seen “relevant disability provisions” as limited to direct discrimination, and so did not argue the point for other claims?
- It does seem to me that the tribunal should have accepted the claimant’s lawyer’s argument that the burden of proof shifted for direct discrimination. It was not necessary to consider how far under s.136 there were factors tending to support an inference of unlawful discrimination (§50), because s.60(4)(5) bypasses this test. However the end result would doubtless have been the same, because the tribunal would have accepted that the employer had shown it would have treated a non-disabled person in the same way, if that person had answered question 3 in the same way as the claimant.
- In any event the claims for discrimination arising from disability, indirect discrimination and reasonable adjustments did succeed in this case, see below.
Comments: Successful claims under ss.15, 19 and 20, even without s.60
Claims for discrimination arising from disability (s.15), indirect discrimination (s.19) and reasonable adjustments (s.20) did succeed. For discussion of this, see Pre-employment enquiries>Equality Act claims generally, particularly the part after the summary of this case.
