Prohibited pre-employment inquiries

‘(1) A person (A) subjects a disabled job applicant (B) to prohibited employment enquiries where A makes inquiries of B as to whether B is a disabled person or as to the nature or severity of such disability.

(2) Inquiries of a disabled person as to the existence, nature or severity of their disability will not constitute prohibited pre-employment inquiries for the purposes of this Act where—

(a) the inquiry is for the purpose of determining whether an applicant requires reasonable adjustments for the interview process and is stated as being such an inquiry;

(b) the inquiry is made at the application stage for the purposes of monitoring disabled applicants, where such inquiry is made in writing, is kept separately from any application form, is anonymised, and is stated as being such an inquiry;

(c) for the purposes of positive action in recruitment, such as offering the guaranteed interview scheme, and is stated as being such an inquiry.

(3) Any invitation to request reasonable adjustments or disclose a disability under subsection (2)(a), (b) and (c) must specify the use that will be made of that information and must state that there is no requirement to provide that information.

(4) Information provided must only be used for the stated purpose.

(5) Inquiries of a disabled person as to the existence, nature or severity of their disability will not constitute prohibited pre-employment inquiries for the purposes of this Act where the inquiry is necessary for the purposes of determining whether an applicant can perform a specific employment-related function, either with or without adjustments and is stated as being such an inquiry.’.—(Mr. Drew.)

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss new clause 21—Employees and applicants: prohibited pre-employment inquiries—

‘An employer (A) must not subject a disabled job applicant (B) to prohibited employment inquiries.’.

I am aware of the time, so I shall speed on with the two new clauses.

We debated amendments tabled by the official Opposition and the Liberal Democrats to clause 36. In response, the Solicitor-General basically said three things, the first of which related to the key area of informal discrimination in pre-employment inquiries, and how it would be difficult to enforce that practically. That was the view of many in the personnel sector. They thought that it would be an onerous undertaking to monitor.

The second response was that those who felt that they were being informally discriminated against could subsequently take action, although it was unclear how that could be taken and how much could be done in that regard. My hon. and learned Friend’s third response, which she may come back to, was that research is being undertaken. The matter was only debated on 18 June, and I do not know whether the research has found its way through to her before it comes to the Committee. However, there is research into whether such a policy would aid attitudes towards disability and help those who feel that they have been discriminated against.

I come to the matter with a clear constituency perspective. I well remember a woman who had faced a breakdown and had lost her job with the police authority. She felt strongly that what had happened to her was a clear case of discrimination. More particularly, when applying for subsequent jobs, future employers demanded to know why she had left the police authority’s employment. She felt that she was unable to get a job in the public sector  because of her original mental health problems and because the police authority had, to my mind, sacked her. She had to disclose that information.

There is a wide range of support for the new clauses. Clearly the commission is minded to support them, and we have the support of Rethink, the Terrence Higgins Trust, the National Aids Trust and the Royal National Institute for Deaf People. The Sainsbury centre for mental health, the Employers Forum on Disability and Mind have gone on record to say that there is a problem. I know that the Minister was sympathetic to the matter, but felt that it was not possible to legislate on it. However, if we are to make a difference on such an important aspect of disability discrimination, we need assurances that things can be taken forward.

I make no apology for bringing the matter back in the even clearer form of the new clauses. The question is whether it can be done. I ask the Minister to assure us on that. If she cannot do that now, can we have some clarity on Report? I know that members of the Committee will know that other national jurisdictions have legislated on this matter. The groups that I mentioned have said that there is similar legislation—as indeed there was in relation to amendments to clause 36—in some European countries. Spain, France, Italy, Belgium, Portugal and the Netherlands have already legislated, as indeed has the United States.

I hope that such legislation is the way forward. Time means that I shall have to cut my remarks to a brief introduction. I hope that my hon. and learned Friend will look sympathetically at the matter, and that we can make some progress on what is often the most devastating sort of discrimination. We have seen the statistics. People with mental health problems who suffer from AIDS find that it is the informal discrimination that prevents them from getting back to work. We need to do something about it. I hope that we can do so in the Bill.

I shall not get very far with my argument, but I shall begin. I start where the hon. Gentleman left off on 18 June, and he made a good case today. He referred to the Solicitor-General’s response to the debate on the amendments tabled by my hon. Friend the Member for Weston-super-Mare. In response to that debate, the Solicitor-General mentioned a number of concerns—I shall deal with those in a moment—but said she that was engaged with the issue and impressed by my hon. Friend’s arguments. Although she urged him to withdraw the amendment and consider the issue, she confirmed that she would write to him on the matter or speak to him directly in Committee. The hon. Gentleman just made that point, and that is effectively what we are now doing.

Picking up on the first of the Solicitor-General’s concerns, which was about the extent to which prohibiting pre-employment inquiries would damage the ability of employers to make—

The Chairman deferred adjourning the Committee (Standing Order No.88).

I go back to the point about reasonable adjustments. The Minister had some concerns about whether reasonable adjustments would be able to take  place if we prohibited pre-employment inquiries. In the amendments tabled by my hon. Friend, I thought that we tackled those concerns because we referred to allowing the inquiries as far as reasonable adjustments were necessary. Proposed subsection (2)(a) of new clause 20, tabled by the hon. Member for Stroud, specifically states that

“the inquiry is for the purpose of determining whether an applicant requires reasonable adjustments...and is stated as being such an inquiry”.

If that were the case, the inquiry would be allowed. It is absolutely right—we do not want to stop employers making those reasonable adjustments or those applying for jobs to be able to set out what reasonable adjustments they need.

The hon. Gentleman raised a specific constituency example, which was about someone with a mental health problem. If we look at the range of the organisations supporting the measure, they are largely those that deal with invisible disabilities such as mental health problems, HIV or AIDS. Clearly, if someone had a visible disability, for example if they were a wheelchair user, it would be a bit obvious, and the question about the pre-employment inquiry would become moot. The issue is when we are talking about questions for those with invisible disabilities. The evidence that was given by the various supporting organisations, such as the Royal College of Psychiatrists, the Disability Charities Consortium, Rethink and the EHRC disability committee, makes it clear that they support, not necessarily the new clauses, but similar provisions, as do the National AIDS Trust and RADAR. I think that they are powerful recommendations.

Given the relatively positive way in which the Minister addressed the issue when she responded to a previous debate, and given that she speaks for the Government on such matters, I want her to look at the work that the Select Committee on Work and Pensions did on the issue. When that Committee was looking at the Bill and how disability equality fitted within a single equality Act, it looked at the issue in some detail. It went back to 1999 and looked at what the Disability Rights Taskforce recommended, which was that

“disability related enquiries before a job offer should be permitted only in very limited circumstances.”

The Disability Rights Commission made the same recommendation in 2003. At the time, the Government rejected the proposal. Susan Scott-Parker, from the Employers Forum on Disability, an organisation which the hon. Member for Stroud mentioned, said to the Work and Pensions Committee:

“We have advised our members that it is a waste of time and effort and money to ask questions about what is wrong with you at the pre-recruitment stage in terms of medical questionnaires for a long time. One of our member banks did some research and found they were spending all this money asking doctors if the guy was okay, and it did not predict anything. They could not predict absenteeism in the future or anything, so they just stopped.”

Susan Scott-Parker had a clear view from business that detailed pre-employment questionnaires serve no useful purpose. In its report, the Work and Pensions Committee made a clear recommendation:

“We endorse the Disability Rights Taskforce’s recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. As a general rule such questions should only be permitted after a conditional/provisional job offer has been made. There will be cases where a job offer is withdrawn because of health-related concerns or because reasonable  adjustment for a disability is not possible. However, the process would then be transparent, and where there is disagreement as to the decision, further consideration or mediation are possible.”

That is important. When the Minister responded to the previous debate, she made the point that if someone went through the process and was discriminated against, they could take action. One of the problems people find is producing the evidence of that. Someone who has received a conditional job offer and who knows that they are the best person for the job will be given reasons why the job offer is being withdrawn. It is much clearer if they are given reasons. They can argue about them. They can bring a case. The evidence is clear. They know that they were going to be given the job and the employer has to have some reasons.

The difficulty for people who are weeded out during the recruitment process is that they do not know whether they would have been given the job. They do not know whether their health disclosures were the reason for them not being interviewed or not being given the job. They do not have that information. Bringing a case is very difficult here. The Work and Pensions Committee’s view was clear. The Government’s response to that view was nowhere near as encouraging as what the Minister told us in Committee. Paragraph 42 of that response states:

“The Government is not convinced of the need to outlaw pre-employment disability-related enquiries, particularly because the information provided can help the employer to decide what reasonable adjustments, including any adjustments to the recruitment process, the disabled person may require.”

I thought both our amendment and the new clauses tabled by the hon. Member for Stroud deal with that perfectly satisfactorily. They make it clear that inquiries can be made of the person applying for the job specifically about the recruitment process and they allow those inquiries to take place for that purpose only. That point is dealt with. Clearly someone who has a mental health disability or a condition such as HIV, which has no impact on the recruitment process at all, does not have to disclose anything. Paragraph 43 of the Government’s response reads:

“The Government recognises that some employers require a health declaration. However, the employment provisions in the Equality Bill make it unlawful to use information about a person's disability to discriminate against that person. Any disabled person who considers that the employer has discriminated against them because of their disability may take action under new procedures for settling internal disputes which the Government has made simpler and more flexible since 6 April 2009. They can also make use of the DL56 Questions Procedure. Formal enforcement action may be taken by making a claim to an Employment Tribunal, where the burden of proof falls on the employer to show that it has not discriminated.”

There are two points there. The first, which I have already touched on, is that once it is thrown back on the individual to have to prove they have been discriminated against, it is much more difficult for them to prove that it was because of disability-related conditions if they are discriminated against at a very early stage in the process. If they have had a conditional job offer withdrawn it is a much more straightforward process. An employer has to be much clearer about the reasons for the withdrawal of that job offer.

I do not find the first part of the reasons set out in paragraph 43 very compelling. The second is not entirely right. I am sure that the Minister will touch on that when she responds. If I remember correctly from some  of our earlier debates, at an employment tribunal the burden of proof does not fall on the employer to show that he has not discriminated until the employee has demonstrated a prima facie case that there has been some discrimination. I am not entirely certain that that is right in fact. Even so, requiring the employee to take that step when they may have very little evidence at their disposal is very difficult.

The Minister’s response to this matter on 18 June was quite positive. She said that she would go away and have a look at it to see whether our arguments held water. The Government’s later response—the response dated 23 June from the Minister with responsibility for disabled people to the Work and Pensions Committee—was much less positive. It would be helpful if the Minister could outline those differences.

It is worth considering the information we had from the National AIDS Trust on the pre-employment questionnaires. The trust highlighted the response to the Work and Pensions Committee, said that it was sadly not encouraging and encouraged members of the Committee to raise the matter again. It said that the Government had asked whether banning the use of questionnaires would encourage more recruitment of disabled people, and it supplied a case study from the Terrence Higgins Trust report, “21stCentury HIV”, which contained a quote from an individual:

“Some time ago I did experience some discrimination in the first stages of the application process when applying for a job. In three different applications I got through the interview stages and I got to the point of doing the medical tests you need when you are practically in and have the job, but for some reason things didn't go any further. Since then I've gotten to the stage where I could go to interviews and I haven't, because of my fears, I suppose, of going through the same thing.”

We need to stop situations such as that, where people feel there is no point. As soon as they see the application form and they know that there is going to be detailed questions about their health, many people—a bit like the constituent of the hon. Member for Stroud—do not even go through the process. They have had so many knock-backs and rejections that as soon as they see that they face questions about their health, they do not even want to go there. That is what we are challenging.

An earlier debate and the quote that I read from Susan Scott-Parker of the Employers Forum on Disability make it clear that business is very relaxed about the change and would positively welcome it. In our evidence-taking sessions, I asked all the employer organisations  whether they would have any issues if the Government legislated to rule out pre-employment health questionnaires, apart from in the case of allowing information to be gained for making reasonable adjustments, and they were all very relaxed about it. Businesses have had concerns about a number of clauses introduced in the Bill, but this is one area where the Government could legislate with the support of a wide range of disability organisations, and business, if not actively supportive, would not have any issues. Given what the hon. Member for Stroud said in our previous debate and the Solicitor-General’s positive response, even if she feels that she cannot accept the new clauses, I urge her to give a commitment that the Government will think about this and bring forward their own, perhaps better drafted, measure on Report. The Committee will find that a positive step.

I wanted to follow on from my hon. Friend’s comments, as a member of the Work and Pensions Committee, to emphasise the seriousness with which we looked at the issue. He has already mentioned that we went back quite a long way, to 1999 and the Disability Rights Taskforce. Indeed, if we look at the restrictions that that taskforce sought to place on any overall ambition, we see that they mirror closely what is in the new clause today. From 1999 to the present is a long time to wait for what is quite a straightforward element.

My hon. Friend has already touched on the support of business, but he has not necessarily gone far enough. The evidence taken during the Select Committee was much wider than the examples he gave. For example, the Federation of Small Businesses came to us. We asked about the questionnaires and the response was:

“I think they should be got rid of”— getting a clearer statement than that is difficult—

“My day job is helping disabled people get back to work, and we have put in applications from the same person with a tick saying they have not got a disability and they have got the interview, and then the same person has ticked it and they have not.”

That illustrates the point.

One of the other organisations that came to us as a witness was the CBI.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four o’clock.