Disability discrimination: beware of pre-employment health questionnaires, advises Claudia Gerrard. From the June 2011 print issue of Professional Security magazine.
You know the situation. You need to fill a job for a security guard but itโs not a particularly easy position to fill: long unsociable hours, shift work, long walks between locations. You need someone young, fit and able to work flexibly. Clearly, the job isnโt suitable for the elderly, infirm or someone who can only work school hours. So your first instinct is to write an advert along those lines. After all, you tell yourself, isnโt honesty the best policy? Then a little nagging voice enters your head. It might be conscience, but more probably itโs your lawyer, telling you about the Equality Act 2010 and that youโll end up in tribunal if you donโt comply with the disability discrimination provisions.
That stops you short. You knew about the laws of discrimination generally. Everyone knows you canโt discriminate on the grounds of sex or race or against pregnant women. Yet now youโre being told that you must positively discriminate in favour of disabled people. So what does that mean in practice? Thereโs an obligation on employers, and this includes at the job advertisement stage, to make sure that the job is open to everyone, regardless of whether they have a disability. That doesnโt just mean an obvious disability, but potentially less obvious afflictions, such as colour blindness and dyslexia. As an employer, you must make reasonable adjustments to allow anyone with a disability to carry out the job. You canโt automatically rule out a candidate if they need help to do the job. That is disability discrimination and is against the law.
Yet how can you find out whether someone can do the job before they start working for you? The law says you canโt ask pre-employment health questions unless they are fundamentally connected to the job. Gone, therefore, are the days when employers could ask huge reams of questions about the state of someoneโs health. Now, although you canโt ask meaningless health questions, at pre-interview stage, you can ask if a candidate needs adjustments in order to attend an interview and give them the job spec. Let the candidate decide if they need reasonable adjustments to be able to carry out the job. Then work at implementing those adjustments so that the disabled person can do the job. You have to. Itโs the law. The Act places much greater responsibility upon employers and, to avoid any claims, itโs important to make sure you comply fully.
The Act, which came into force in October 2010, contains far-reaching new provisions. So companies are well-advised to review their policies and procedures as a matter of urgency.
1) Know the protected characteristics: there are nine forms of protected characteristics, including age, disability, sex, race and marital status. Any of these can form the basis of a discrimination claim.
2) Know the forms discrimination may take: there are seven forms of discrimination, including direct, indirect, victimisation and harassment.
3) Review contracts of employment and handbooks: these may need to be updated.
4) Review application forms: questions relating to health, age, marital status and pregnancy, in particular, may lead to a claim for discrimination.
5) Review health questionnaires: pre-employment health questions can only be asked in certain limited situations.
6) Review recruitment procedures: employers must positively discriminate in favour of disabled candidates and make reasonable adjustments for disabled candidates to attend an interview.
7) Ensure contractors and suppliers adhere to good equality procedures
Companies can now be liable for discriminatory acts carried out by third parties.
8) Train staff: tell staff how discrimination can arise and the consequences of a discriminatory act. Good training is essential and shows a commitment to equal opportunities.
9) Monitor equality practices and procedures: this helps if a claim is made and checks whether youโre complying with the law.
10) Obtain legal advice as soon as an issue arises: the new law is complex and without case law difficult to apply. Legal advice can solve a problem before it develops, so always obtain specialist legal advice as early as possible.
About the author: Claudia Gerrard is Legal Director of Ortolan Legal Limited, part of the Ortolan group of companies which provides legal and recruitment services to sectors including parking, security, leasing and aviation. Visit www.ortolanlegal.com.
