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Session 2008 - 09 Publications on the internet General Committee Debates Equality Bill |
Equality Bill |
The Committee consisted of the following Members:Alan Sandall, Eliot Wilson,
Committee Clerks attended
the Committee Public Bill CommitteeTuesday 7 July 2009(Afternoon)[Mr. Joe Benton in the Chair]Equality BillNew 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, read the First time, and Question proposed (this day), That the
clause be read a Second
time. 4
pm Question
again
proposed.
The
Chairman: I remind the Committee that with this we are
considering new clause 21Employees and applicants:
prohibited pre-employment
inquiries An employer
(A) must not subject a disabled job applicant (B) to prohibited
employment
inquiries.. John
Howell (Henley) (Con): Welcome back to the Chair,
Mr. Benton, on the downhill slope to the end of our
consideration of the
Bill. When
we adjourned, I was explaining that business supports the new clause. I
had mentioned the support of the Employers Forum on Disability and the
Federation of Small Businesses, and was about to come on to the
CBIs support. Subsection (2)(a), (b) and (c) meets the points
raised by the CBI in the Work and Pensions Committee evidence
session. I
make no apology for speaking on this matter because it is important.
That importance is illustrated by question 43 of the first
sitting of this Committee, in which my hon. Friend the Member for
Forest of Dean
asked: Can
I ask whether you support such a restriction on pre-employment
questionnaires? The
response from Caroline Gooding of RADAR
was: We
think that, in relation to the employment of disabled people, that is
probably the single biggest difference and improvement that could be
made through the Equality
Bill.[Official Report, Equality
Public Bill Committee, 2 June 2009; c. 23,
Q43.] There
has been praise for the new clause from many sources, but that
quotation sums it
up. My
hon. Friend mentioned the Government response to the Select Committee
report. Paragraph 42
states: The
Government is not convinced of the need to outlaw pre-employment
disability-related
enquiries. If
I may give the Minister some wriggle room, that answers the wrong
question. The Select Committee never proposed outlawing pre-employment
disability-related inquiries, but said specifically in its report that
that should be done on certain occasions and that questions about
health and disability should be raised only at certain
times. I
think that the Minister has enough scope to reach a sympathetic
conclusion on this issue, which has acquired an enormous consensus,
including disability groups, the Select Committee and
business. I
rise simply to vocalise Liberal Democrat support for the new clause,
which was tabled by the hon. Member for Stroud. We think that the
removal of barriers to employment is important. The new clause seems to
be the simplest way forward. There are no legitimate arguments against
such a move. It is not dissimilar to the idea behind no-name
employment. It is about removing, in an informal sense, the first
barrier, which people find so hard to overcome. It can be removed so
easily and in a cost-free
way.
The
Solicitor-General (Vera Baird): Welcome home,
Mr. Benton, for what will be a short stretch of further
incarceration. New
clauses 20 and 21, which were tabled by my hon. Friend the Member for
Stroud, would limit the circumstances in which employers can use
pre-employment inquiries to determine whether job applicants are
disabled or to ascertain the extent of their impairments. Employers
would be allowed to ask for such information only to identify the need
for reasonable adjustments, to facilitate the monitoring of disabled
applicants, to support positive action in recruitment or to determine
whether someone can perform a specific job-related function. He makes
no apology for raising this issue again and neither do Opposition
Members. I do not think that they should apologise. We discussed this
area on 18 June, when debating amendments 207 to 212, and the new
clause has come from that debate.
Our precise
concern about the new clause is that it is about capturing information
for the purposes of identifying the need for reasonable adjustment. For
example, someone with a mental health condition may require more time
at interview to consider questions and put together their answers.
There is nothing to stop an unscrupulous employee using that
information to discriminate unlawfully. We want to be careful, since
one purpose of the Bill is to simplify and streamline protection, not
to do anything that would be contrary to that aim. If we restricted the
use of pre-employment inquiries to that set of closely defined
circumstances and put tight conditions around their use, that could be
an unwelcome area of complexity. There is obviously a balance to be
struck in respect of disability and equalities
rights. I
have seen the brief from the National AIDS Trust, the Terrence Higgins
Trust and Rethink, the Work and Pensions Committee inquiry material
that has been mentioned already and the research by the Chartered
Institute of Personnel and Development, mentioned in the Work and
Pensions Committee report, which found that 60 per cent. of employers
said that they had disregarded applicationsand, by implication,
would do sofrom people with drug or alcohol problems, criminal
records or a history of mental health problems or incapacity. That is
clearly blatant, direct discrimination that must be
tackled. There
is already a mechanism for challenging direct disability discrimination
in employment under the Disability Discrimination Act 1995, and those
provisions are carried forward in the Bill, which provides for anyone
who considers that information about their disability has been used to
discriminate against them can challenge the employer through an
employment tribunal.
There was
some discussion about the burden of proof. The briefing from the NAT,
Terrence Higgins Trust and Rethink acknowledges that current disability
law provides that protection and considers such cases hard to prove,
but it does not recognise the fact that legislation puts the burden of
proof on the employer. Typically, the questionnaire procedure would
probe why the job offer was not gone through with or was withdrawn. So
that would, one imagines, make available the first step to the
aggrieved party, which would show that there has been some
discrimination. Then the burden of proof turns immediately to the
employer to show that it has not discriminated. That is some element of
important protection for disabled
people. Mr.
Mark Harper (Forest of Dean) (Con): I think that the
Minister said at the beginning of her answer that some survey evidence
showed that 60 per cent. of employers had withdrawn job offers for a
number of reasons, including someones having a mental health
incapacity. That implies that such discrimination is fairly
widespreadalthough that may be a slight exaggerationand
is certainly not uncommon. Given what she said about employment
tribunals, will the Minister share with the Committee any information
about the number of successful and unsuccessful cases that are brought
against employers for such discrimination in the employment process? If
she is correct in what she is saying about the protection that is in
place and about such discrimination being widespread, we would expect a
significant number of cases at least to be brought to tribunal, if not
brought to a successful conclusion.
The
Solicitor-General: No, I cannot directly help with that,
but they are taken to tribunal; I am in no doubt about that. I cannot
say what numbers were behind the 60 per cent. of employers who
responded in that way to the Chartered Institute of Personnel and
Development research. So I am afraid that I cannot throw better light
on that matter at
present. It
has been suggested in Committee that the use of pre-employment
inquiries is limited in other jurisdictions. The US is one jurisdiction
that is usually cited, and there pre-employment questionnaires are only
allowed if they relate to
the ability
of an applicant to perform job-related
functions. The note from
NAT, Terrence Higgins Trust and Rethink contends that that ensures that
it is easier to recognise cases where employers have discriminated
against applicants, and it cites data from a 2002 research report that
16,000 discrimination claims are filed under the Americans with
Disabilities Act of 1990 each year. We have looked at the US
experience, but we have not been able to find any evidence to show that
that specific element of protection is widely used, or that it has had
any positive effect on the recruitment of disabled
people. We have also
tried to make a comparison between the claims filed in the US and in
this country. About 19,500 disability discrimination claims were filed
with the US equal opportunities commission in 2007-08. In
Great Britain, just over 5,800 claimsnot necessarily
specifically about this provisionwere registered with the
Tribunals Service. That is about one third of the US total, in a
country with a population about one fifth the size. That does not
suggest that a greater proportion of people are finding it easier to
take enforcement action in the US than in this
country. However, we
need to look at the Rethink survey quoted in the documents. It
indicates that some 41 per cent. of mental health service users who
were surveyed said that they were put off applying for jobs for fear of
being discriminated against. An important duty that we all have is to
try to accelerate the rate at which disabled people who want to work
and who can work come into employment. Therefore, we must attend to
this
topic. The
position, as Opposition Members would see it, is that I responded
positively to the debate on 18 June, and on 23 Juneaha, a split
in the Governmentthere was a less positive response from a
different Minister. One of the happy things about the new public Bill
procedure is that we take evidence, which is put into Hansard.
It is readily available to assist in convincing people who are
concerned that there is not a strong push from the employees
side to ensure that the change is brought about, and that the business
sector will resist it. The Hansard extracts that indicate a
keenness for it from the employees side and, at the very least,
a relaxed if not actively supportive approach from the
employers side have been useful since 23 June. We will
introduce a clause to deal with the problem on Report, if my hon.
Friend the Member for Stroud will withdraw his new
clause. Mr.
David Drew (Stroud) (Lab/Co-op): With that delightful
news, and in the spirit of consensus that I hope the Committee will
finish with, I am delighted to
withdraw the new clause on the basis that the matter will come back on
Report. I beg to ask leave to withdraw the
motion. Clause,
by leave, withdrawn.
Ordered, That
certain written evidence already reported to the House be appended to
the proceedings of the Committee.(The
Solicitor-General.) 4.15
pm Question
proposed, That the Chairman do report the Bill, as amended, to the
House.
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