Covid-19: License to discriminate?

I have discussed the prohibition on pre-employment health enquiries imposed by the  Equality Act before on this blog. Section 60 of the Equality Act 2010 imposes a prohibition on an employer making health related enquiries of a prospective employee. Section 60(1) states

(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.

The provision is there for a good reason although the enforcement provisions leave a lot to be desired. It makes in unlawful for an employer to ask an applicant whether, for example, there is a history of mental health conditions in the applicant’s medical history. By adopting this approach the risk of an employee being discriminated by having preconceptions of the impact of the disability on the employee’s work abilities is reduced substantially. Section 16(6) provides some exceptions on the prohibition but these are really about equality data monitoring or when an offer has been made to ensure reasonable adjustments are met.

Earlier today I was talking about Tesco’s recruitment of 20,000 new staff to assist in its overstretched services in the midst of the coranvirus pandemic and heard a story about one such recruitment exercise that took place in the next few days. The interview (according to the report) – which was conducted in a group really only consisted of one question: are you over 70, and / or are you at risk under the at risk guidance (asthma, diabetes, etc)? If the answer was no, then the applicant was hired. If yes, then the application was unsuccessful. Tesco’s approach is more akin to a older workers and disabled workers need not apply notice.

This, it seems, is a bespoke recruitment process which flies in the face of the prohibitions in section 60. It is not hard to see a scenario where an applicant with asthma could allege this refusal was also direct disability discrimination or the 71 year old applicant was directly discriminated against because he was not appointed for the sole reason that he was over 70.

In normal circumstances the alleged recruitment practices would be absolutely outrageous. It is not clear what roles are being recruited and what I say below will not apply to any back-office work that can be done from home but, right now, it is surely right, even if not legal, for Tesco to adopt the policy it has (remembering this post is based on one unverified anecdote) of refusing to recruit someone because of their age and/or respiratory related disability.  As an employer it would be recruiting staff who are vulnerable to the virus and at greater risk of serious ill-health to come into contact with customers, work-colleagues in the stores and warehouses for sustained periods which is inconsistent with its health and safety obligations.

I do not think the policy of excluding at risk workers in recruitment is one that is allowed by the Equality Act as it does not come within one of the s.60(6) exceptions, but it is in these unusual circumstances a reasonable and responsible one and it may be emergency legislation will amend s.60 to allow the approach I have ascribed to Tesco. I would be interested to see USDAW’s approach to this – and, while you’re here if any readers are retail workers you should join USDAW or any other union if another recognised union is present today, it will be very important as rights at work and threats to jobs will be on the medium and long term horizon.

For union reps I also think this will be a pressure point going forward when (and it may not be frequent) new recruitment takes place. Whilst it may be appropriate sometimes and not something I would encourage any challenge on it will also inevitably be abused when adequate safeguarding can be achieved by way of home working etc in order to discourage and prevent some older and disabled workers getting back into the job market.