Lynne
Featherstone: When the hon. Member for Forest of Dean
intervened, he spoke about grounds or combinations of grounds, such as
colour and race. My reading of that is that it could still be
interpreted as such and would not contradict the idea of two being the
number of the multiple discrimination, and any combination thereof.
However, I will reflect on what the Solicitor-General said. I do not
deny that the new clause might broaden the law. Indeed, that is part of
the purpose of the equality guarantee. It would greatly strengthen
people if they were covered by it and equal before the law. I shall
reflect on the new clause because something is still missing from the
Bill, which could be provided by a similar
provision.
Mr.
Boswell: On a point of order, Lady Winterton. Before we
consider this specific new clause, I spoke earlier of my intention to
press new clause 22 to a Division. I am not entirely convinced by the
Solicitor-General’s deployment of her arguments, although she
did it very clearly. I remain something of a sceptic, but at a somewhat
higher level. There will be other opportunities in the consideration of
the Bill, so I am not minded to press my new clause to a Division at
this
stage.
Lynne
Featherstone: I beg to ask leave to withdraw the
motion. Clause,
by leave,
withdrawn.
New
Clause
20Prohibited
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.
Mr.
Drew: I beg to move, That the clause be read a Second
time.
The
Chairman: 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.’.
Mr.
Drew: 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.
Mr.
Harper: 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— 1
pm The
Chairman deferred adjourning the Committee (Standing Order
No.88).
Mr.
Harper: 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,
“21st Century 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. | 
