April 20, 2011

Pauline Dall is Head of Mind's Legal Unit and leads on our Time to Challenge work, which provides legal support for people experiencing discrimination as well as information for employees and employers.  Here, she talks about the new Equality Act and how it affects your rights to disclose or not to disclose when applying for jobs.

"Mind and Rethink, the charities behind Time to Change, were part of a successful campaign to ban employers from using pre-employment health questionnaires during the recruitment process. There was considerable evidence that applicants who disclosed a disability did not get past the sifting stage – and that they would be in a much better position if questions about health and disability came after they had the chance to show their skills in an interview situation.  Since the Equality Act 2010 came into force last October, employers should generally seek health information only after a job offer has been made. Section 60 makes clear that some questions are still allowed beforehand – but this should be restricted to asking about reasonable adjustments at interview and certain health questions if these are of key importance to the job.

From the enquiries we are receving, it is clear that not all employers have removed health questions from their application forms. It is unlawful to ask detailed health questions, but only the Equality and Human Rights Commission can bring a claim against an offending employer. It is important to inform the EHRC about employers who have not changed their forms.

In the meantime, what should a disabled job applicant do if health questions are still being asked?

Applicants should read questions carefully and answer only what is being asked – if this is unclear, one option may be to delay answering the questions and instead clarify what the employer wants to know. Remember that employers are still allowed to enquire on application forms whether reasonable adjustments may be needed to assist an applicant at the interview stage. If this won’t be necessary, then just say ‘Not applicable’ or ‘No’. It follows that if reasonable adjustments will be needed, then the employer will have some indication of possible disability.

Employers are also allowed to ask if applicants will be able to do certain key parts of the job, so again may have advance notice of disability. As an example, EHRC guidance makes clear that if recruiting staff to work in a warehouse, an employer should be able to ask whether applicants can lift heavy objects (or whether they could do so if certain reasonable adjustments were made).

This seems understandable in situations where someone’s disability would make the job inherently unsuitable for them. However, we would not expect that an employer would be permitted to ask questions about an applicant’s ability to cope in a stressful environment, for example. If forms do contain these or similar questions, this is again something that EHRC may be able to challenge. Mind’s Legal Unit would also be keen to be kept informed.

If answering a question about health, then we always recommend answering honestly because giving a dishonest or misleading answer raises issues about trust. Often in relation to mental health issues, an employee who did not disclose may well have a strong argument that this was only out of concern about stigma around mental illness and not because of any intention to deceive – which should hopefully be taken into account by the employer in deciding how to tackle such a situation. However, it is still possible that giving untruthful or misleading answers could result in disciplinary action.

We hope that the changes in the law will discourage intrusive questions. If questions are asked, then a disabled candidate who loses out on a job may understandably suspect that disability is the reason, giving a possible claim for disability discrimination. Under the previous legislation, such a claim was quite difficult to win because the candidate bringing the claim had to prove the direct link with disability. Now, under section 60 of the Equality Act, an employer who has asked unlawful health questions will be assumed to have discriminated against an unsuccessful disabled candidate and will have the more difficult task of proving to a Tribunal that disability did not play a part in the decision. If the employer cannot do this, then the applicant will have a good chance of winning a discrimination claim.

One of the key things to remember is that the law should work to protect anyone with a disability. We are keen to hear from anyone who is faced with awkward questions in an application form or at interview so that we are able to review how these provisions are working in practice.

Contact the Time to Challenge team

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