Equality Bill

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The Committee consisted of the following Members:

Chairmen: † Mr. Joe Benton, David Taylor, Ann Winterton

† Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)

† Baird, Vera (Solicitor-General)

† Baron, Mr. John (Billericay) (Con)

† Boswell, Mr. Tim (Daventry) (Con)

† Brown, Lyn (West Ham) (Lab)

† Drew, Mr. David (Stroud) (Lab/Co-op)

† Featherstone, Lynne (Hornsey and Wood Green) (LD)

† Foster, Michael Jabez (Parliamentary Secretary, Government Equalities Office)

† Griffith, Nia (Llanelli) (Lab)

† Harper, Mr. Mark (Forest of Dean) (Con)

† Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

† Hesford, Stephen (Wirral, West) (Lab)

† Howell, John (Henley) (Con)

† Mason, John (Glasgow, East) (SNP)

† Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)

Penrose, John (Weston-super-Mare) (Con)

† Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)

† Thornberry, Emily (Islington, South and Finsbury) (Lab)

Alan Sandall, Eliot Wilson, Committee Clerks

† attended the Committee

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Public Bill Committee

Tuesday 7 July 2009

(Afternoon)

[Mr. Joe Benton in the Chair]

Equality Bill

New Clause 20

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, 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 21—Employees 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

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CBI’s 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.

Lynne Featherstone (Hornsey and Wood Green) (LD): Welcome back for our last sitting, Mr. Benton.

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.

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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 applications—and, by implication, would do so—from 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 someone’s having a mental health incapacity. That implies that such discrimination is fairly widespread—although that may be a slight exaggeration—and 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.

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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 claims—not necessarily specifically about this provision—were 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 June—aha, a split in the Government—there 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

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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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Prepared 8 July 2009