Equality Act 2010

Issues forum – October 2010

Contents

Equality Act 2010

Suitable for work? - the impact of the
Equality 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

Equality Act – October 2010

Equality Act 2010

Suitable for work? - the impact

of the Equality Act 2010
It is common practice for employers to seek
information about the health of prospective
employees by issuing job applicants with
a ‘pre-employment health questionnaire’
asking for details of susceptibilities or
previous illness or injury. There can be very
good reasons for doing so. Employers will
of course be conscious of their duties and
responsibilities both at common law and
under the Management of Health and Safety
One of the common problem areas for The Act has two main purposes:
at Work Regulations 1999 which requires
disabled job applicants is pre-employment
employers to assess the risk to health, • To harmonise discrimination law; and
health questionnaires. Anecdotal evidence
undertake appropriate health surveillance and
suggests that there is considerable
take into account employees’ capabilities. • To strengthen the law to support
discrimination against disabled people (and
progress on equality.
in particular those with mental health issues)
Such a process aspires to not only protect
in recruitment and people are often put off The Act collates and restates the existing
the employer against allegations of breach
even applying for jobs because of pre- discrimination legislation concerning sex,
of duty and from enforcement action, but
employment health questions. This has led race, disability, sexual orientation, religion,
also to protect the future health of the
to campaigns calling for more specific belief and age, and seeks to adopt a single
prospective employees and their work
measures to be introduced. As a result approach where appropriate. It also
colleagues. Likewise, employers will be
provisions have now been included in the contains a number of important changes
conscious of their responsibilities towards
Equality Act 2010 (the ‘Act’) which came to the law. The majority of past legislation
disabled job applicants under the old
into effect from the 1 October 2010. on discrimination has been repealed by
Disability Discrimination Act (replaced from
1 October by the Equality Act 2010), and this Act coming in to force.
The Act will apply in England, Wales
will require knowledge of any long term
and (with a couple of minor exceptions)
disabilities so that they can make reasonable
Scotland. It will not apply in Northern Ireland;
adjustments where necessary.
equality is a devolved matter for the Northern
Ireland administration to address separately.
Section 60
stirs a healthy debate:
Section 60 of the Act states that a potential
employer must not ask about an applicant’s
health or disability until the person has been
either:

1. Offered a job either outright or on

conditions; or
2. Included in a pool of successful
candidates who are to be offered a job
when a position becomes available.

This includes asking such a question as

part of the application process or during an
interview. In addition, no-one else (such as
an Occupational Health practitioner) can ask
these questions on the employer’s behalf
before the job offer is made (or before
inclusion in a pool of successful applicants).

Section 60(3) explains that the employer

does not contravene the relevant disability
provision merely by asking about an
applicant’s health, although the employer’s
subsequent conduct in reliance upon the
information given might be in contravention
of a relevant disability provision. This is an
important consideration as in the event of
a discrimination claim, the burden of proof
would shift to the employer under Sections
60(4) and (5) i.e. the employer would have to
provide evidence that any question
posed was relevant.
The prohibition set out in section 60(6) on
raising enquiries about disability and health
has some exceptions, and does not apply
where the question is asked for one or more
of a limited number of reasons, including:
• Establishing whether the employer will
be under a duty to make reasonable
adjustments in connection with any
proposed job assessment i.e. the
recruitment process
• Establishing whether the candidate will
be able to carry out a function that is
intrinsic to the work concerned; and
• Monitoring diversity and the range of
persons applying to the employer for
work.
In practice, it is questionable as to how
much added protection this provision will
provide given the fairly broad exceptions.
There are many jobs which, because of the
processes involved or the substances to
which an employee could be exposed, may
pose a risk to the health of a potential,
susceptible, employee. One such example
is the possibility of an allergic reaction to
ingredients such as flour, dust or nuts in
a bakery. In these or in ‘higher risk’ jobs,
where following an appropriate job risk
assessment specific health risks are
identified, it would be appropriate to provide
applicants with a health questionnaire which
asks questions directly relevant to the risk.
However, the Equality and Human Rights
Commission (EHRC) will have the power to
investigate the use of prohibited questions
and take enforcement action in its own
name, even where no discrimination can be
shown to have taken place. In addition, the
Act may be further strengthened at some
future stage as regards to protection against
discrimination in selection arrangements,
potentially requiring employers to ensure
that selection for interview is carried out on
an anonymous basis, and that the person
selecting doesn’t know the candidates
protected characteristics.

2
Equality Act – October 2010
Practical Impact:
Employers who use questionnaires or health
screening must take care and consider:
When they should pose health
questions:
• If prior to making a job offer, then this
must be for a reason falling within one
of the permitted exceptions;
The type of questions posed:
• What information does the employer
intend to elicit? Questions will have
to be carefully worded
• The questionnaire should be job
specific not generic. It must address
a ‘function’ which is intrinsic to the
particular job. With reference to the
earlier example, a question to elicit
whether the applicant has a nut allergy
may be ‘intrinsic’ to a bakery production
assistant role handling raw materials
but may not be relevant for an admin
assistant who is unlikely to be exposed
• Employers should take care that they
are able to answer with evidence why
the question has been asked. This
could include input from the company
Health and Safety advisor through
a job specific Risk Assessment,
plus supporting comment by the
Occupational Health advisor and
with the agreement of the employer’s
HR team
• Alternatively, questions asked with a
view to making reasonable adjustments
in connection with the interview or any
proposed assessment are also valid
• Employers should be clear as to why
and what type of questions are posed
before short-listing candidates. In the
alternative, the medical questionnaire
could be sent out post interview,
making the job offer subject to
completing a successful and
appropriate medical assessment.
What amounts to a function
which is ‘intrinsic to the job’?
There is likely to be much debate around
terms such as ‘intrinsic’ and ‘reasonable
adjustments’. Unfortunately it may take
some time and individual case law before
we receive some beneficial interpretation
and clarification.
Each role will have to be considered
individually. However there are clearly jobs
in which certain physical capabilities may be
regarded as intrinsic, as well as workplace
exposures which are regarded as inevitable.
By way of example it may be appropriate to
ask an applicant applying for a technical
position in a printing role where their role
requires them to differentiate variations
in colour, whether they are colour blind.
Less clear-cut scenarios may arise, for
example, where a job requires significant
lifting and handling. Is it then appropriate
to ask questions relating to physical health,
previous back & musculo skeletal conditions
which may indicate a pre-disposition to
injury?
These will ultimately be matters for courts to
decide albeit this does not necessarily help
employers in the short term. As a minimum,
employers need to be able to demonstrate
that they have considered the Act, have
acted to the best of their ability in setting
up a process and are implementing that
process consistently.
Penalties
Apart from an enforcement action by the
EHRC the person who believes they have
been discriminated against can bring a claim
within three months of the alleged conduct
taking place to an Employment Tribunal
(section 120).
If an Employment Tribunal finds in favour
of the Claimant it can (section 124):
• Make a declaration regarding the
rights of the Complainant and/or
the Respondent
• Order compensation to be paid,
including damages for injury to feelings;
and/or
• Make an appropriate recommendation
(which may include recommendations
to benefit the wider workforce and
review of the employer’s policies and
training).
Employers should also remember that
their procedures in compiling personal
data must comply with the information
in the Commissioner’s Code of Practice
on employment.
In support of the Act, the EHRC has
published new statutory Codes of Practice
on Discrimination which will replace the
existing codes, these include guidance on
recruitment. Further guidance can be found
at www.acas.org.uk
In practice...
Q: I own a printing company and want
to employ a printer in a technical
role. Can I ask applicants whether
they have good eyesight?
A: Yes, providing the questions relates to
a function that is intrinsic to the work
and/or identified as a health concern
during the Risk Assessment process.
Care has to be taken, but in these
circumstances, where the employee
may have to differentiate between
shades of colour it is appropriate to
ask a specific question such as
whether the applicant is colour blind.
Q: I am an Operations Manager for
a commercial bakery. I wish to
employ operatives in the raw
products section, but am concerned
that if they already have asthma or
are allergic to flour dust this may
harm their health and expose the
company to a civil claim for
damages. What can I ask?
A: As per the example above, if reasonable
adjustments to working practices can’t
be made and some exposure to flour
dust is unavoidable, then you are
entitled to ask whether they are allergic
to flour dust as this is intrinsic to the job.
However you may not be entitled to ask
whether they have any general chest
conditions.
Q: If I am not permitted to ask an
applicant about their medical
history pre interview can I do so
before I confirm appointment?
A: Yes, you can appoint subject to
the successful applicant passing a
satisfactory medical. Once again any
medical assessment cannot be as wide
ranging as was allowed previously and
must address the applicant’s medical
‘risks’ intrinsic to the job.
4
Equality Act – October 2010
Q: I want to employ an applicant
for a job requiring lifting, manual
handling and repetitive work. Am
I entitled to ask questions about an
applicant’s general medical fitness?
A: Not specifically, however you can
provide applicants with a detailed
overview of what the job involves.
You can ask in general terms whether
there is anything the applicant may
wish to draw to your attention in
relation to performing that role.
Q: I use agencies to provide workers
as and when I need them, how can
I vet the medical suitability of the
candidates they offer?
A: Provide your Agency with a detailed
job description and advise them of any
‘intrinsic’ health risks just as you would
if you were recruiting direct.
Q: What will be the situation with
annual medicals and health
surveillance. For example, we As a general comment, it will be interesting
currently have a blanket policy to to see the Tribunal’s interpretation of
test our employees’ hearing. This situations where Best Practice medical
gives us the ability to prove whether advice recommends that employees should
someone’s hearing has deteriorated not be exposed to specific hazards where
or not during their time with us in they have already exhibited symptoms
the event of a civil claim. How does above a certain level. An example here
the Act apply in such scenarios. is removing employees from exposure
A: Establishing a benchmark of hearing to vibration where there is a risk of their
performance where noise induced Stage 2 HAVS developing to Stage 3.
hearing loss is an intrinsic risk would Given the standard which exists in this
likely be regarded as a normal and example, it would seem reasonable for a
acceptable component of an employer’s diligent employer to seek clarification that
hearing conservation policy. However, a prospective employee isn’t already at
it is likely the Tribunal would take a dim or close to Late Stage 2.
view if employment were refused or
terminated on these grounds alone.
Many people suffer some degree of
hearing loss and, in isolation, this does
not make them unfit for work - unless
it falls below a minimum prescribed
performance standard, as may be
the case in some safety critical roles.
Action Plan
1. Review job specific Risk Assessments
with the support of an occupational
health specialist to establish:
a. Is there a risk to the future health of
an already susceptible applicant?
b. Is there a health requirement which
is intrinsic to the job?
2. If Yes, consult with HR and your
occupational health team to establish
any need for a bespoke pre-employment
medical questionnaire. Alternatively
will it be sufficient to offer employment
subject to an appropriate health
assessment (medical) post offer?
3. Where the need has been identified,
draft a job specific medical questionnaire
to be sent with detailed Job Description
to applicants.
4. Consider questionnaire responses. If
the applicant can safely undertake the
role with reasonable adjustments then
their application should be accepted.
If not, then it may be appropriate to
reject the application.
5. Where no pre-employment
questionnaire has been used and a
job offer has been made, you can take
appropriate measures to ensure that
the individual’s health or disability will
not prevent them from undertaking the
role. This might include a ‘post offer’
questionnaire and/or medical. This
must again be limited to factors that are
intrinsic to the job role and taking into
account the potential for reasonable
adjustments to be made. Depending
on the outcome the application can
be accepted or rejected.
The Future
The Act is likely to take 12 – 18 months to
bed down and for the first cases to appear
before the Employment Tribunal. In most
cases awards of compensation are likely
to be modest and reflect injury to feeling;
the ‘discrimination’ having prevented an
applicant being short-listed for interview.
However if a position is offered subject to
a satisfactory medical and the offer is then
withdrawn for medical reasons, which are
not intrinsically relevant to the job, then a
significantly higher award may follow as the
‘discrimination’ has led to a direct loss of
employment. An example would be rejection
of the applicant for a manual handling role
simply because the medical revealed a long
term skin condition.
Risk Managers may be concerned that the
Act will dilute an employer’s ability to screen
out prospective employees whose present
medical conditions (eg. asthma, musculo
skeletal, allergies, etc) may be aggravated by
their work - thus exposing the organisation
to costly civil claims. Providing that
employers are careful in how they manage
the recruitment process, they should not be
at a disadvantage. An accurate description
of the job should inform the prospective
applicant of what is involved. If the applicant
still chooses to apply and is successful
at interview then the appointment can
be made subject to the safety net of a
relevant medical assessment.
Author biography
Noel Walsh is Head of Commercial
Insurance at national law firm Weightmans
LLP, principal author of over 40 position
papers and publications relating to liability
for personal injury and as the editor of the
Radar Journals he is widely known for his
work on emerging risks and what to do
about them.
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