Clause
36Employees
and
applicants 4.30
pm
Lynne
Featherstone: I beg to move amendment 165, in
clause 36, page 26, line 22, at
end insert— ‘(1A) An
employer (A) discriminates against a person (B) in the arrangements in
subsection (1)(a) if A fails to take reasonable steps to ensure
that— (a) the selection
for interview is carried out on an anonymous basis,
or
(b) the person selecting for interview does not know
the gender, race, sexual orientation, age or marital status of B or
whether B has a
disability.’. This
amendment protects job applicants from subliminal discrimination
arising from information assumed from an applicant’s name. It
also prevents information being made available to people short-listing
that reveals whether an applicant has protected
characteristic. On
Second Reading, I floated the idea of anonymous applications for jobs.
For members of the Committee who were not present for that debate, I
will explain the premise. The idea began when I had two interns with
the surnames Hussein and Patel. They told me that they had applied for
hundreds of jobs and had not been accepted for interview for any. It is
not too hard to conclude that that had something to do with their
surnames and recognition of their ethnicity. They were both bright,
wonderful interns who went on to far better things than helping
me. Much
of the Bill is about the discrimination that is found once one is in
work. This proposal takes a step back and considers why people might be
excluded at the written application stage. People could be subliminally
excluded by a human resources department or an individual who is
reading a CV, without there being any intention to discriminate. In a
name, one can recognise ethnicity, gender and age. We would not wish
any of those things to be barriers at that first stage. Once people get
through to interview all will be revealed, but at that stage
personality can mitigate any subliminal
bias. When
children take exams, we do a similar thing to eliminate any bias from
the examiner or marker—give children a candidate number for
their GCSE, AS-level and A-level papers. There is no reason why written
application forms could not use something like the national insurance
number so that unconscious discards did not happen to the same
degree. I
did not realise that floating this idea on Second Reading would create
such a hoo-hah in the personnel world. I have been supported by two big
employer organisations, one of which is the Chartered Institute of
Personnel and Development thinks that the idea has great merit.
Although businesses often moan that equality can be expensive, this
measure could eliminate some unconscious discrimination without costing
anything. The
other side of the personnel world is very concerned and upset. In a
Personnel Today poll, 73 per cent. of the 300 respondents
did not like the idea, but I have a view that the personnel industry
might not like an idea that could mean some of its control being
removed, as it would see that as a challenge to its expertise. However,
organisations that represent personnel and employment agencies, are
keen because this is a simple measure. I am not sure why there was such
a hoo-hah: it seems like a sensible suggestion and would be minimal in
terms of effort and expenditure. I therefore hope to find some support
for
it.
The
Solicitor-General: This proposal was raised on Second
reading by the hon. Lady and we promised to consider it. She obviously
wants to make employers take reasonable steps not to acquire
information in the early part of recruitment exercises that would
identify applicants as having specified protected characteristics. The
purpose of that would be to avert subliminal
discrimination. Many small and medium-sized businesses might struggle to
put the necessary provisions in place, as they do not have dedicated HR
staff and it might be
difficult.
Lynne
Featherstone: I ran this as an experiment in my own
office, as we are effectively small businesses. It really put no strain
whatever on
us.
The
Solicitor-General: I would find it difficult in my office
to firewall myself off so that I did not know anything at all about the
details of a person who had presumably been offered an interview by my
personal assistant. I do not think it would be so straightforward for
small businesses to do
it. Some
HR managers have responded to the hon. Lady raising the matter on
Second Reading, with most being against. They oppose the amendment on
grounds including—probably not justifiably—that it
presupposes that recruitment processes are inherently discriminatory.
However, they also say that the proposal is unworkable in relation to
the obligations on reasonable adjustment. The Chartered Institute of
Personnel and Development appears to support the amendment, but has
said that it would rather see it promoted as good practice, not
legislation.
Lynne
Featherstone: There was no inference that personnel or
human resources are discriminatory. This is all about unconscious
barriers. I am aware that the chartered institute thinks it should be
voluntary—that is a fall-back position, because it would promote
best practice—but I was hoping for a stronger recommendation,
just because I genuinely think it is a good
idea.
The
Solicitor-General: I had no notion of thinking that the
hon. Lady intended to allege discrimination, which is why I said that
it is perhaps not the objection from human resources managers, of which
there have been manifold, that we ought to take most seriously.
However, they do talk about the proposal being simply unworkable, and
it is important not to suggest that an organisation supports
legislative proposals when in fact it is saying that this may be a good
idea, although it thinks it should be not in legislation, but only
good-practice
guidance.
John
Mason: The Solicitor-General used the word
“unworkable”. I want to raise the practicalities of this.
My gut feeling is that I like the idea, and it might rule out some
problems, but I am thinking, too, of some jobs where the number of
people who apply is quite limited. For example, all the applicants
might be known because they are well-known in the industry or whatever.
I wonder how the practicalities would work
out.
The
Solicitor-General: That is a valid point and perhaps what
we ought to do is experiment, which is what we are seeking to do in
that the Department for Work and Pensions has carried out a CV research
exercise. Two carefully matched applications or CVs with names
recognised as having different ethnicities have been submitted in
response to the same advertised vacancies to see whether employers make
different decisions depending on the names in the CVs. That research
will be reported in the summer—I am sorry that I do not have an
answer now, having tantalisingly mentioned the subject.
The initial
indications are that there is significant discrimination, so more work
needs to be done to find an appropriate solution. I imagine that
members of the Committee know that an early-day motion on
discrimination against people suffering from HIV or mental illness has
been tabled, calling for the Bill to restrict the use of pre-employment
questionnaires. I
think we will return to this issue, but if the hon. Lady is reassured
that we are looking at it in the careful way that I set out and is
happy that we should wait for the results, I encourage her to withdraw
the amendment. Although she has talked about anonymity only, does not
her amendment also suggest that the person selecting for interview
should
not “know
the gender, race, sexual orientation, age or marital
status” at
all? That would be a tall order. There would be no name or gender, so
who could the interviewee be? If the hon. Lady is thinking about names,
she has a point, which we should look at when we have the
research.
Lynne
Featherstone: Yes, the amendment is essentially about
names. I am heartened by what the Minister has said. The issue needs
investigation. If the work being done by the DWP demonstrates
significant discrimination at the application stage, she will want to
introduce either recommendations for best practice or
guidance. Following
the Minister’s reassurance, I am more than happy to beg to ask
leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
John
Penrose: I beg to move amendment 207, in
clause 36, page 26, line 22, at
end insert— ‘(1A) An
employer must not ask for details of an applicant’s health or
disabilities before an offer of employment to which subsection (1)
applies has been made except in so far as necessary to make reasonable
adjustments to the recruitment
process.’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 208, in clause 36, page 26,
line 34, at end
insert— ‘(3A) An employer
must not ask for details of an applicant’s health or
disabilities before an offer to which subsection (3) applies has been
made except in so far as necessary to make reasonable adjustments to
the selection
process.’. Amendment
209, in
clause 52, page 40, line 27, at
end insert— ‘(1A) An
employment service-provider must not ask for details of an
applicant’s health or disabilities before an offer to which
subsection (1) applies has been made except in so far as necessary to
make reasonable adjustments to the selection
process.’. Amendment
210, in
clause 52, page 41, line 5, at
end insert— ‘(4A) An
employment service-provider must not ask for details of an
applicant’s health or disabilities before an offer to which
subsection (4) applies has been made except in so far as necessary to
make reasonable adjustments to the selection
process.’. Amendment
211, in
clause 54, page 42, line 20, at
end insert— ‘(1A) A trade
organisation must not ask for details of an applicant’s health
or disabilities before an offer of membership to which subsection (1)
applies has been made except in so far as necessary to make reasonable
adjustments to the selection
process.’.
Amendment 212,
in
clause 54, page 42, line 34, at
end insert— ‘(4A) A trade
organisation must not ask for details of an applicant’s health
or disabilities before an offer of membership to which subsection (4)
applies has been made except in so far as necessary to make reasonable
adjustments to the selection
process.’.
John
Penrose: The amendments are similar to but more narrow
than the previous group. They would limit an
employer’s ability to produce a pre-offer
questionnaire—in other words, to get information from job
applicants about their health or disabilities in advance of the
interview or of making a decision. That particularly involves illnesses
or disabilities that would not be visible during the interview, such as
mental illness, HIV and so forth, the aim being to ensure that such
issues are not a factor in a decision on a job
offer. The
details of any illness or disability would not be revealed until after
an offer was made. At that point, it would become much harder for a
potential employer to back out having made the offer. The discussion
would be more likely to be framed in such terms as, “Okay, what
reasonable adjustments will you require and how can we ensure that we
are making them?” Therefore, the application and job selection
process would be more likely to be fair and equitable.
Some of the
amendments acknowledge that it may sometimes be necessary to ask in
advance of an interview whether a job applicant has special
requirements to gain access to the interview. Such information may be
required on that basis, but that is a much narrower point and a
practical requirement rather than anything
else.
The
provisions have support from a wide range of external organisations.
The submission from the Royal College of Psychiatrists
says: “Evidence
tells us that people with mental health problems face serious
discrimination in the employment process, notably through the attitude
of
employers”. The
Disability Charities Consortium
says: “A
snapshot poll by Mind conducted in October 2008 found that 1 in 4
people had job offers withdrawn after disclosing a mental health
problem, despite this being illegal under the Disability Discrimination
Act. There is also evidence that disability and sickness-related
information do not predict a person’s level of absence in
work.” As
a final example, Rethink
says: “Fewer
than four in 10 employers would consider employing someone
with a history of mental health problems, compared to more than six in
10 for candidates with physical
disability.” 4.45
pm The
important thing is to ensure that a structure is in place that
encourages employers not to make decisions based on inadequate
information or fear, which are often what underlie discrimination,
rather than malice. Where malice exists, that must clearly be dealt
with as well, but the important thing is to ensure that employers are
given every opportunity to do the right thing, and the amendments aim
to create that kind of environment. I hope, therefore, that the
Minister will be able to offer us some reassurance that the Government
are favourably disposed to them, or at least willing to consider them,
given the breadth of support outside this place for such
measures.
The
Solicitor-General: I am glad that the amendments have been
tabled. Like amendment 165, which we have dealt with, they arise from
concerns about the potential use of information gathered during
recruitment to sift out candidates, in this case because of disability.
I understand those concerns. The amendments would restrict the
disability-related information that employers, service providers,
employment service providers and trade organisations could gather
before a job, service or membership decision. They would be allowed to
gather only what information they needed to enable reasonable
adjustments to be
made. We
have general worries about imposing mandatory restrictions by
legislation in that way. There are also specific worries about the
practicalities of the proposals, such as what sorts of inquiry the
employer could make without receiving information that could be used to
discriminate and how the employer would know where the boundary lies.
Of course, if a person believes that information that they have given
about their disability at an interview has been used to discriminate
against them, they can already take action. There is no difficulty
about doing so. I wonder slightly what the amendments would add, but I
see that the hon. Gentleman is about to tell
me.
| 
