Equality Act 2010
Issues forum – October 2010
Equality Act – October 2010
Equality Act 2010
Suitable for work? - the impact of the
Equality Act 2010 1
Section ...
Suitable for work? - the impact
of the Equality Act 2010
It is common practice for employers to seek
information about the...
Equality Act – October 2010
Section 60
stirs a healthy debate:
Section 60 of the Act states that a potential
employer mu...
Practical Impact:
Employers who use questionnaires or health
screening must take care and consider:
When they should pose ...
Equality Act – October 2010
In practice...
Q: I own a printing company and want
to employ a printer in a technical
Action Plan
1. Review job specific Risk Assessments
with the support of an occupational
health specialist to establish:
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Plantation Place
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Qbe issues forum equality act - october 2010


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Section 60
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Qbe issues forum equality act - october 2010

  1. 1. Equality Act 2010 Issues forum – October 2010
  2. 2. Equality Act – October 2010 Contents Equality Act 2010 Suitable for work? - the impact of the Equality Act 2010 1 Section 60 stirs a healthy debate 2 Practical Impact 3 What amounts to a function which is ‘intrinsic to the job’? 3 Penalties 3 In practice... 4 Action Plan 5 The Future 5
  3. 3. Suitable for work? - the impact of the Equality Act 2010 It is common practice for employers to seek information about the health of prospective employees by issuing job applicants with a ‘pre-employment health questionnaire’ asking for details of susceptibilities or previous illness or injury. There can be very good reasons for doing so. Employers will of course be conscious of their duties and responsibilities both at common law and under the Management of Health and Safety at Work Regulations 1999 which requires employers to assess the risk to health, undertake appropriate health surveillance and take into account employees’ capabilities. Such a process aspires to not only protect the employer against allegations of breach of duty and from enforcement action, but also to protect the future health of the prospective employees and their work colleagues. Likewise, employers will be conscious of their responsibilities towards disabled job applicants under the old Disability Discrimination Act (replaced from 1 October by the Equality Act 2010), and will require knowledge of any long term disabilities so that they can make reasonable adjustments where necessary. One of the common problem areas for disabled job applicants is pre-employment health questionnaires. Anecdotal evidence suggests that there is considerable discrimination against disabled people (and in particular those with mental health issues) in recruitment and people are often put off even applying for jobs because of pre- employment health questions. This has led to campaigns calling for more specific measures to be introduced. As a result provisions have now been included in the Equality Act 2010 (the ‘Act’) which came into effect from the 1 October 2010. The Act will apply in England, Wales and (with a couple of minor exceptions) Scotland. It will not apply in Northern Ireland; equality is a devolved matter for the Northern Ireland administration to address separately. The Act has two main purposes: • To harmonise discrimination law; and • To strengthen the law to support progress on equality. The Act collates and restates the existing discrimination legislation concerning sex, race, disability, sexual orientation, religion, belief and age, and seeks to adopt a single approach where appropriate. It also contains a number of important changes to the law. The majority of past legislation on discrimination has been repealed by this Act coming in to force. Equality Act 2010
  4. 4. Equality Act – October 2010 2 Section 60 stirs a healthy debate: Section 60 of the Act states that a potential employer must not ask about an applicant’s health or disability until the person has been either: 1. Offered a job either outright or on conditions; or 2. Included in a pool of successful candidates who are to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. In addition, no-one else (such as an Occupational Health practitioner) can ask these questions on the employer’s behalf before the job offer is made (or before inclusion in a pool of successful applicants). Section 60(3) explains that the employer does not contravene the relevant disability provision merely by asking about an applicant’s health, although the employer’s subsequent conduct in reliance upon the information given might be in contravention of a relevant disability provision. This is an important consideration as in the event of a discrimination claim, the burden of proof would shift to the employer under Sections 60(4) and (5) i.e. the employer would have to provide evidence that any question posed was relevant. The prohibition set out in section 60(6) on raising enquiries about disability and health has some exceptions, and does not apply where the question is asked for one or more of a limited number of reasons, including: • Establishing whether the employer will be under a duty to make reasonable adjustments in connection with any proposed job assessment i.e. the recruitment process • Establishing whether the candidate will be able to carry out a function that is intrinsic to the work concerned; and • Monitoring diversity and the range of persons applying to the employer for work. In practice, it is questionable as to how much added protection this provision will provide given the fairly broad exceptions. There are many jobs which, because of the processes involved or the substances to which an employee could be exposed, may pose a risk to the health of a potential, susceptible, employee. One such example is the possibility of an allergic reaction to ingredients such as flour, dust or nuts in a bakery. In these or in ‘higher risk’ jobs, where following an appropriate job risk assessment specific health risks are identified, it would be appropriate to provide applicants with a health questionnaire which asks questions directly relevant to the risk. However, the Equality and Human Rights Commission (EHRC) will have the power to investigate the use of prohibited questions and take enforcement action in its own name, even where no discrimination can be shown to have taken place. In addition, the Act may be further strengthened at some future stage as regards to protection against discrimination in selection arrangements, potentially requiring employers to ensure that selection for interview is carried out on an anonymous basis, and that the person selecting doesn’t know the candidates protected characteristics.
  5. 5. Practical Impact: Employers who use questionnaires or health screening must take care and consider: When they should pose health questions: • If prior to making a job offer, then this must be for a reason falling within one of the permitted exceptions; The type of questions posed: • What information does the employer intend to elicit? Questions will have to be carefully worded • The questionnaire should be job specific not generic. It must address a ‘function’ which is intrinsic to the particular job. With reference to the earlier example, a question to elicit whether the applicant has a nut allergy may be ‘intrinsic’ to a bakery production assistant role handling raw materials but may not be relevant for an admin assistant who is unlikely to be exposed • Employers should take care that they are able to answer with evidence why the question has been asked. This could include input from the company Health and Safety advisor through a job specific Risk Assessment, plus supporting comment by the Occupational Health advisor and with the agreement of the employer’s HR team • Alternatively, questions asked with a view to making reasonable adjustments in connection with the interview or any proposed assessment are also valid • Employers should be clear as to why and what type of questions are posed before short-listing candidates. In the alternative, the medical questionnaire could be sent out post interview, making the job offer subject to completing a successful and appropriate medical assessment. What amounts to a function which is ‘intrinsic to the job’? There is likely to be much debate around terms such as ‘intrinsic’ and ‘reasonable adjustments’. Unfortunately it may take some time and individual case law before we receive some beneficial interpretation and clarification. Each role will have to be considered individually. However there are clearly jobs in which certain physical capabilities may be regarded as intrinsic, as well as workplace exposures which are regarded as inevitable. By way of example it may be appropriate to ask an applicant applying for a technical position in a printing role where their role requires them to differentiate variations in colour, whether they are colour blind. Less clear-cut scenarios may arise, for example, where a job requires significant lifting and handling. Is it then appropriate to ask questions relating to physical health, previous back & musculo skeletal conditions which may indicate a pre-disposition to injury? These will ultimately be matters for courts to decide albeit this does not necessarily help employers in the short term. As a minimum, employers need to be able to demonstrate that they have considered the Act, have acted to the best of their ability in setting up a process and are implementing that process consistently. Penalties Apart from an enforcement action by the EHRC the person who believes they have been discriminated against can bring a claim within three months of the alleged conduct taking place to an Employment Tribunal (section 120). If an Employment Tribunal finds in favour of the Claimant it can (section 124): • Make a declaration regarding the rights of the Complainant and/or the Respondent • Order compensation to be paid, including damages for injury to feelings; and/or • Make an appropriate recommendation (which may include recommendations to benefit the wider workforce and review of the employer’s policies and training). Employers should also remember that their procedures in compiling personal data must comply with the information in the Commissioner’s Code of Practice on employment. In support of the Act, the EHRC has published new statutory Codes of Practice on Discrimination which will replace the existing codes, these include guidance on recruitment. Further guidance can be found at www.acas.org.uk
  6. 6. Equality Act – October 2010 4 In practice... Q: I own a printing company and want to employ a printer in a technical role. Can I ask applicants whether they have good eyesight? A: Yes, providing the questions relates to a function that is intrinsic to the work and/or identified as a health concern during the Risk Assessment process. Care has to be taken, but in these circumstances, where the employee may have to differentiate between shades of colour it is appropriate to ask a specific question such as whether the applicant is colour blind. Q: I am an Operations Manager for a commercial bakery. I wish to employ operatives in the raw products section, but am concerned that if they already have asthma or are allergic to flour dust this may harm their health and expose the company to a civil claim for damages. What can I ask? A: As per the example above, if reasonable adjustments to working practices can’t be made and some exposure to flour dust is unavoidable, then you are entitled to ask whether they are allergic to flour dust as this is intrinsic to the job. However you may not be entitled to ask whether they have any general chest conditions. Q: If I am not permitted to ask an applicant about their medical history pre interview can I do so before I confirm appointment? A: Yes, you can appoint subject to the successful applicant passing a satisfactory medical. Once again any medical assessment cannot be as wide ranging as was allowed previously and must address the applicant’s medical ‘risks’ intrinsic to the job. Q: I want to employ an applicant for a job requiring lifting, manual handling and repetitive work. Am I entitled to ask questions about an applicant’s general medical fitness? A: Not specifically, however you can provide applicants with a detailed overview of what the job involves. You can ask in general terms whether there is anything the applicant may wish to draw to your attention in relation to performing that role. Q: I use agencies to provide workers as and when I need them, how can I vet the medical suitability of the candidates they offer? A: Provide your Agency with a detailed job description and advise them of any ‘intrinsic’ health risks just as you would if you were recruiting direct. Q: What will be the situation with annual medicals and health surveillance. For example, we currently have a blanket policy to test our employees’ hearing. This gives us the ability to prove whether someone’s hearing has deteriorated or not during their time with us in the event of a civil claim. How does the Act apply in such scenarios. A: Establishing a benchmark of hearing performance where noise induced hearing loss is an intrinsic risk would likely be regarded as a normal and acceptable component of an employer’s hearing conservation policy. However, it is likely the Tribunal would take a dim view if employment were refused or terminated on these grounds alone. Many people suffer some degree of hearing loss and, in isolation, this does not make them unfit for work - unless it falls below a minimum prescribed performance standard, as may be the case in some safety critical roles. As a general comment, it will be interesting to see the Tribunal’s interpretation of situations where Best Practice medical advice recommends that employees should not be exposed to specific hazards where they have already exhibited symptoms above a certain level. An example here is removing employees from exposure to vibration where there is a risk of their Stage 2 HAVS developing to Stage 3. Given the standard which exists in this example, it would seem reasonable for a diligent employer to seek clarification that a prospective employee isn’t already at or close to Late Stage 2.
  7. 7. Action Plan 1. Review job specific Risk Assessments with the support of an occupational health specialist to establish: a. Is there a risk to the future health of an already susceptible applicant? b. Is there a health requirement which is intrinsic to the job? 2. If Yes, consult with HR and your occupational health team to establish any need for a bespoke pre-employment medical questionnaire. Alternatively will it be sufficient to offer employment subject to an appropriate health assessment (medical) post offer? 3. Where the need has been identified, draft a job specific medical questionnaire to be sent with detailed Job Description to applicants. 4. Consider questionnaire responses. If the applicant can safely undertake the role with reasonable adjustments then their application should be accepted. If not, then it may be appropriate to reject the application. 5. Where no pre-employment questionnaire has been used and a job offer has been made, you can take appropriate measures to ensure that the individual’s health or disability will not prevent them from undertaking the role. This might include a ‘post offer’ questionnaire and/or medical. This must again be limited to factors that are intrinsic to the job role and taking into account the potential for reasonable adjustments to be made. Depending on the outcome the application can be accepted or rejected. The Future The Act is likely to take 12 – 18 months to bed down and for the first cases to appear before the Employment Tribunal. In most cases awards of compensation are likely to be modest and reflect injury to feeling; the ‘discrimination’ having prevented an applicant being short-listed for interview. However if a position is offered subject to a satisfactory medical and the offer is then withdrawn for medical reasons, which are not intrinsically relevant to the job, then a significantly higher award may follow as the ‘discrimination’ has led to a direct loss of employment. An example would be rejection of the applicant for a manual handling role simply because the medical revealed a long term skin condition. Risk Managers may be concerned that the Act will dilute an employer’s ability to screen out prospective employees whose present medical conditions (eg. asthma, musculo skeletal, allergies, etc) may be aggravated by their work - thus exposing the organisation to costly civil claims. Providing that employers are careful in how they manage the recruitment process, they should not be at a disadvantage. An accurate description of the job should inform the prospective applicant of what is involved. If the applicant still chooses to apply and is successful at interview then the appointment can be made subject to the safety net of a relevant medical assessment. Author biography Noel Walsh is Head of Commercial Insurance at national law firm Weightmans LLP, principal author of over 40 position papers and publications relating to liability for personal injury and as the editor of the Radar Journals he is widely known for his work on emerging risks and what to do about them. To find out more, about QBE, please visit our website: www.QBEeurope.com/rm Disclaimer This publication has been produced by QBE Insurance (Europe) Ltd (“QIEL”). QIEL is a company member of the QBE Insurance Group. Readership of this publication does not create an insurer-client, or other business or legal relationship. This publication provides information about the law to help you to understand and manage risk within your organisation. Legal information is not the same as legal advice. This publication does not purport to provide a definitive statement of the law and is not intended to replace, nor may it be relied upon as a substitute for, specific legal or other professional advice. QIEL has acted in good faith to provide an accurate publication. However, QIEL and the QBE Group do not make any warranties or representations of any kind about the contents of this publication, the accuracy or timeliness of its contents, or the information or explanations given. QIEL and the QBE Group do not have any duty to you, whether in contract, tort, under statute or otherwise with respect to or in connection with this publication or the information contained within it. QIEL and the QBE Group have no obligation to update this report or any information contained within it. To the fullest extent permitted by law, QIEL and the QBE Group disclaim any responsibility or liability for any loss or damage suffered or cost incurred by you or by any other person arising out of or in connection with you or any other person’s reliance on this publication or on the information contained within it and for any omissions or inaccuracies.
  8. 8. 2390/ISSUESFORUM/EQUALITYACT/OCT2010 QBE European Operations Plantation Place 30 Fenchurch Street London EC3M 3BD tel +44 (0)20 7105 4000 fax +44 (0)20 7105 4019 enquiries@uk.qbe.com www.QBEeurope.com QBE European Operations is a trading name of QBE Insurance (Europe) Limited and QBE Underwriting Limited. QBE Insurance (Europe) Limited and QBE Underwriting Limited are authorised and regulated by the Financial Services Authority. QBE Management Services (UK) Limited and QBE Underwriting Services (UK) Limited are both Appointed Representatives of QBE Insurance (Europe) Limited and QBE Underwriting Limited.