Section 60 of the Equality Act (‘EA’) makes it generally unlawful for questions about disability and health to be put to an applicant during an interview or job applications process, before the offer of a job has been made to that applicant. This is often an area where many employers find themselves in hot water, and where applicants can feel as if their chances of applying for a job are being compromised because of a health condition or disability. Where section 60 is ignored a claim for discrimination may arise.
The Equality and Human Rights Commission has recently published some new guidance on section 60 that is aimed at making its provisions clearer for both employers and workers:
When will section 60 be applicable? Section 60 applies to every job application process – internal or external – and is designed to ensure that a decision as to whether or not to recruit someone is made objectively, rather than on the basis of an applicant’s disability or health issues. An applicant should be given the opportunity to demonstrate that they have the requisite skills to do the job without negative assumptions being made on the basis of an actual health condition or disability, or a perceived one. The application of section 60 is broad and includes employment agencies and authorised agents, as well as most types of roles.
How can you avoid breaching section 60? An employer should ensure that they – or anyone working on their behalf – does not put any questions to an applicant, prior to the point at which a job is offered, that require the applicant to provide information on their health or a disability. This same rule also applies to information requests made in written or verbal form to a third party, such as a previous employer.
What if a position requires medical checks? It won’t be a breach of section 60 to make a conditional offer subject to medical checks and enquiries to be carried out after the offer is made.
Are there exceptions? Yes, the following situations are considered those in which questions about health or disability - pre-offer - are a necessary part of the process.
1. If the job in question requires a certain physical ability that is intrinsic to successfully completing it – for example a roofer. Here, it’s acceptable to ask questions about certain physical abilities relating to the nature of the job.
2. Where it is stated in the job advert that the position requires the applicant to have a certain disability to be able to do the job.
3. Where the job is part of a positive action scheme for disabled people – for example, where disabled applicants are put through a fast track application process.
4. Where there are assessments that need to be taken as part of the application process and some adjustments may need to be made to those assessments for a disabled applicant. In this case, any information requested on the disability should be requested and collected separately from the main application.
5. To provide information on diversity. It’s acceptable to collect information for diversity monitoring, as long as this is separated from the point of making the decision about the job applied for.
6. To fulfill legal requirements, such as where a physical fitness certificate is required from an applicant for their application to be accepted.
What if an employee feels that section 60 has been breached?
The first step is to ask for an explanation as to why certain questions have been asked – this can be done face to face at the time, or afterwards in writing.
Where a prohibited question has been put to an applicant during an interview and the result is that the job is not offered to the applicant on the basis of a health condition or disability, or what the employer believes to be a health condition or disability, a discrimination claim may arise.
If a job offer has been made subject to health checks but is later withdrawn because of a disability, or the perception of a disability, then this may also trigger a discrimination claim.
Employers should take action to avoid issues with section 60
There are a number of steps that an employer can take to ensure compliance with section 60:
- Review job application documentation, including assessments and exercises, and anything used by third parties on an employee’s behalf (including reference requests) and remove any reference to disability, health or sickness.
- Consider the questions that are to be put to applicants or third parties about applicants and ensure they don’t ask anything related to health or disability.
- Train everyone involved in the recruitment process to look out for questions and enquiries that could potentially breach section 60.
- Ensure separation of information being collected for an application and information that is simply for diversity monitoring purposes.
- Be sure to explain why information on diversity monitoring is being requested.
- Don’t involve occupational health practitioners in an assessment of a candidate until a job offer has been made.
- If one of the exceptions to section 60 is being employed, be sure to explain that this is the case and why it is being used.