Section 60 Equality Act

The Equality and Human Rights Commission has recently published new guidance with respect to section 60 of the Equality Act 2010 (the ‘Act’). This is the section of the Act that makes it generally unlawful to ask questions about disability and health during a job applications process before an offer of a job is made to an applicant. Where an employer does ask the kinds of questions that are covered by section 60 there may be a claim for discrimination. Below is a summary of the guidance provided by the Commission to employees and workers.

What does it cover?

The idea behind section 60 is to ensure that a recruitment decision is made objectively, to prevent the knowledge of an applicant’s health issues or disability being used by an employer to reject an applicant, before that person has had the opportunity to show that they have the skills to do the job. Its purpose is not to stop employers choosing the best person for the job. The section is wide and will cover both internal and external job application processes, employers, authorised agents and employment agencies, as well as most jobs and positions, from tenancies and pupilages, through to appointments to public office.

What questions cannot be asked?

1. Questions that are asked by an employer, or on behalf of an employer, at any point in the application process pre job offer, that seek information about the applicant’s disability or health.

**It is important to note that it will not be a breach of section 60 for an employer to make a job offer conditional on medical checks and to then make health related enquiries.

2. Questions put either in written or verbal form to an applicant and a third party, such as a previous employer.

What are the exceptions?

The exceptions to the restrictions in section 60 are those situations where questions about a disability or the applicant’s health are considered to be necessary. These include:

– Where this may affect an activity that is intrinsic to the role being applied for. For example, where a role requires a certain physical ability, such as a builder or roofer, a question can be asked about specific physical functions.

– Where having a certain disability is an occupational requirement for the position being applied for. For example, where a position requires experience of a disability and the job advertisement states this.

– As part of a positive action scheme for disabled people. For example, where a company requests information on whether an applicant is disabled in order to be able to provide that applicant with access to the company’s fast track interview scheme for those with disabilities.

– Where the job application process includes assessments that test applicants’ abilities to do the job and adjustments may need to be made for a disabled applicant. For example, where there is a written test and an applicant is visually impaired. (Note: information on this should be collected separately from the principal job application).

– As part of diversity monitoring (Note: information on this should be collected separately from the principal job application and should be kept separate from the decision making process for the job applied for).

– Where there are legal requirements, for example a certificate of physical fitness is legally required before an applicant will be suitable for a job.

Taking action?

A job applicant is entitled to ask for an explanation as to why a question has been asked that is prohibited by section 60. In practice, applicants may find this difficult to do in the pressure of an interview situation, but enquiries can also be made afterwards.

A discrimination claim can be made by an applicant:

a) Where the prohibited question has been asked during an interview and a job is not offered because the applicant is disabled or the employer thinks that the applicant is disabled.

b) Where a job has been offered subject to health checks and that offer is withdrawn because the applicant is disabled or the employer thinks that the applicant is disabled.

The Commission may also take action for non-compliance against an employer where it is felt that it is proportionate to do so.

How to avoid falling foul of section 60

Employers should take positive action to try and avoid conflict with the provisions of section 60. The best way to do this is to take action before a problem can arise. For example:

1. Remove any references to health, sickness absence, disability etc from:

– pre offer reference requests

– general questions to applicants and third parties

– recruitment exercises

2. Carry out a general review of all recruitment processes and procedures to ensure section 60 is being complied with and train staff to understand section 60 and how it impacts on what can and cannot be done during recruitment, whether external or internal.

3. Where information on disability is being gathered for monitoring purposes, keep this separate from the main application documents – and especially from those making recruitment decisions – and explain why this is being requested.

4. Where one of the exceptions to section 60 is being used, explain that this is happening and why.

5. Do not refer candidates to occupational health practitioners until a job offer has been made.