It is (in most cases) unlawful to not select a candidate to a job because they are disabled or for reasons related to their disability. It is difficult to be precise but it is a rare employer where the success rates of disabled candidates applying for posts equals the success rates of non-disabled applicants.

Anecdotally, employees in the civil service with visible disabilities have reported to me that when they are interviewed for a post the minute their cane, wheelchair, or walking frame are seen the interviewers switch off – in terms of job prospects they know their chances of success are next to nil.  Of course, proving disability discrimination in such circumstances is difficult.

With the passing of the Equality Act the Labour government took decisive action to prevent discrimination in recruitment by enacting section 60 of the Act:

(1)A person (A) to whom an application for work is made must not ask about the health of the applicant (B)—

(a)before offering work to B, or

(b)where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work.

This clause prohibited, except in certain situations, an employer making enquiries into an applicant’s disability or health until a decision to appoint a person or select a shortlist for a post had been made. It is not hard to see the rationale for the prohibition. Prior to this is was customary for employers to require health checks or details of ‘absence history’ before selecting a candidate whereupon, like the anecdotal scenario above, the employer suddenly decides the candidate is not a ‘good skills match’ for the post before wishing them the best in their future career. The prohibition on asking such questions has the purpose to “prevent disability or health information being used to sift out job applicants without first giving them the opportunity to show they have the skills to do the job.”1 If an employer does not know a person is disabled the innate prejudice of recruitment processes that discriminate against disabled applicants cannot be in play. It is an idea with which the present government seems enamored since it is, it says, seeking to follow a similar approach with ‘name blind’ applications.

However, there is a downside to this approach. Where an applies as an external candidate2 arguably it makes the prospects of enforcing the law in a tribunal setting more difficult.

With the possible exception of a claim for indirect discrimination if an employer does not have knowledge of disability then Section 60 provides a potential shield for an employer to evade liability. The possibility is highlighted by Rachel Crasnow QC writing shortly after enactment and before she was made a silk:

While this legislation may prevent the screening out of applicants who might otherwise be barred without the chance to demonstrate their skills and competencies for the job, could such a prohibition operate in the employer’s favour when it comes to arguing lack of knowledge for the purpose of disability related discrimination?
An employer will not be liable for discrimination arising from disability under section 15 of the Equality Act where it did not know and could not reasonably have been expected to know that the employee had the disability. It might be that the very provisions brought in pursuant to section 60 to protect disabled job applicants will actually be used against them once employed, to the advantage of employers. The prohibition on pre-employment health enquiries could enable employers to practice a “don’t ask” evasion policy or practice deliberate ignorance, in order to avoid liability for disability discrimination claims.
How does this fit with the employer’s duty to do all they can reasonably be expected to do to find out if a person has a disability? The provisions of section 60 will not stop employers from asking medical questions post job offer. This opportunity enables reasonable adjustments and fulfils the knowledge requirement, as well as providing an applicant with the chance to argue that an employer was unreasonable in not making such enquiries at this legitimate stage.
The potential clash between the knowledge requirement
and the bar on pre-employment health inquiries is likely to come down to questions of reasonableness and how the courts interpret the exceptions to the general rule within section 60. However there are bound to be cases where the employer argues the knowledge requirement is not satisfied since at the key stage of inquiry it was not reasonable to ask a Claimant if she or he suffered from a disability due to the prohibition in section 60.
From the employers’ perspective, it’s not just a question of avoiding pre-employment health questions for the same reasons as being wary of asking women of a certain age if they plan on having children, or applicants of a certain age what their retirement plans are, it could also assist them in defeating claims brought by actual employees – far from what the Government intended.

The criticism is certainly a valid one although, on balance, I think the introduction of section 60 is still a step forward for worker protection , not least because of the difficulty of enforcing rights in the ET procedurally, with the imposition of ET fees and the lack of equitable remedies for discrimination complaints even where proved.

In my view the problem is not so much the protections of section 60 but the requirement for knowledge of an applicant’s disability to be known by a prospective employer rather than an anticipatory principle being applied,3 as it is in a civil context. Even if not applied in toto in an employment context (and I am not sure why an employer should show more of a proactive approach to its customers than it does to its employees) in a recruitment context where there is not the same meaningful opportunity to notify an employer of disability there seems to be more of a case.

  1. EHRC, Pre-employment health questions: Guidance for employers on Section 60 of the Equality Act 2010, 3 ↩
  2. Section 60 applies to internal candidates as well but since the employer is the same what follows regarding knowledge of disability would be less likely to apply in these circumstances. ↩
  3. The EHRC explains that in respect to the duty in a civl non-employment context “The duty is ‘anticipatory’. This means you cannot wait until a disabled person wants to use your services, but must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment or a learning disability.”