The Equality Bill: how disability equality fits within a single Equality Act - Work and Pensions Committee Contents

3  Equality in Employment

Employment rates

98. DWP states that over the last seven years the employment rates for people from ethnic minorities, disabled people and people aged 50-69 have all increased.[109] The gap between the overall employment rate and that of each of these disadvantaged groups has also fallen. Between Q3 2001 and Q3 2008 the employment rate for ethnic minorities has increased from 58.7% to 61.3% with the employment gap narrowing by 2.7 percentage points; for disabled people the employment rate increased from 42.7% to 48.3%, with the employment gap narrowing by 5.7 percentage points; and the employment rate for people aged 50-69 increased from 52.0% to 55.9%, with the employment gap narrowing by 4.1 percentage points.[110]

Key policy challenges


99. The passing of the DDA 1995 marked a major milestone in the securing of rights for disabled people. Cloisters and the Discrimination Law Association argue that the Act has made a major difference to disabled people in employment situations - particularly in enabling retention, as a result of the obligation to make reasonable adjustments. The number of employment tribunal claims relating to disability discrimination has steadily increased.[111] Mr Sandbach of Citizens Advice stated that "the Citizens Advice Bureau deal with about 22,000 discrimination cases a year and the number appears to go up rather than down."[112]

100. However, Mr Harwood of the Public Research Interest Unit (PIRU) described the DDA as "a qualified failure" and said that "It enabled several thousand employees to get some financial redress at employment tribunals and also made an important difference to employment practice, but it failed to adequately tackle and reduce discrimination and disadvantage."[113] This apparent paradox is echoed by the Employers' Forum on Disability which states that "Employment rates of disabled people have not increased significantly since the introduction of the Disability Discrimination Act (DDA) in 1995. Nevertheless, the Employers' Forum on Disability believes that the DDA has contributed to increased equality for disabled people in the workplace. It has raised employer awareness and helped build disability competence into the normal way in which people do business."[114]

101. Mr Crowther of the Equality and Human Rights Commission (EHRC) suggested that the type of disability matters in terms of progress in equality for disabled people in employment: "Ten years ago many people would have been thinking about wheelchair users or people with visual impairment. Now what dominates the debate around employment is mental health. […] People may require adjustments that are less tangible and more difficult to understand. I think we have a job of work to do to refresh our approach and make sure it reflects that added complexity about who it is that we are now actually dealing with, in addition to enforcement."[115] Mr Sandbach agreed: "There is a hierarchy of disability and what I mean by that is there are certain identifiable physical impairments the employer thinks they can manage work around, but when it comes to degenerative conditions or unpredictable conditions or mental health problems it is a different story altogether."[116]

102. This view is reflected in the employment rate of certain groups of disabled people. The table below shows that between 2005 and 2008, the employment rates for most of the impairment types have seen significant improvements. However, the employment rates for people with mental illness, phobias or panic has remained substantially lower (at just over 10%) than the employment rate for most other types of impairment.[117]

Table 1 Source Office for Disability Data Source: Labour Force Survey, Q2

103. Mencap even state that the number of people with a learning disability in employment has not increased at all since the Government came to power in 1997.[118] However, the table above shows some improvement in the employment rate of people with learning difficulties, although it remains very low. Mr Congdon of the Disability Charities Consortium argued that "One of the reasons is that in order to recruit people with a learning disability you do need to make reasonable adjustments. In fact you need to use the concept […] of favourable treatment. One of the things very clearly in that is about giving people the opportunity to have what is called a work trial with the expectation that if they do well in that they will get a job. One of the realities is that with a learning disability if people go for the standard interview of answering questions, if they have communications difficulties et cetera they are liable to fail at that stage."[119]

104. The Royal National Institute for Deaf People (RNID) also reports that the employment rate for deaf people has not changed significantly since the introduction of the DDA despite a strong desire to find work.[120] Research from a recent study of people living with HIV in London found that only 47% of people living with HIV were in employment.[121] The DWP Minister, Kitty Ussher, acknowledged that:

"Any gap (employment gap between disabled people and overall population) is obviously unacceptable and we must continue to narrow it further. Also, within that there is […] a wide variation in employment rates for different impairment types. […] I know that the employment rate of people with learning difficulties is particularly low and for those with mental health problems. […] As a whole, I think our analysis would be much done; much more to do."[122]

105. We asked our witnesses what employment levels for disabled people the Government should be aiming for and Mr Azad of the National AIDS Trust argued that: "our aspiration is that people living with HIV will enjoy national average employment rates. We see no reason why not."[123] Mr Purton of the TUC agreed that "There are always going to be people who for a lot of different reasons, not all of them associated with disability, are not going to be able to participate in the employment market, which is why a target of equalising at around 80%, give or take a few, is not an unreasonable thing."[124]

106. The DWP's Public Service Agreements (PSA) 8b and c require it to: "taking account of the economic cycle, increase the employment rate of disabled people and significantly reduce the difference between their employment rate and the overall rate."[125] The DWP Departmental Report 2008 states that the definition of a disability, for the purpose of this target, is people with a current disability consistent with the DDA 1995. This target is monitored quarterly using data from the Labour Force Survey.[126]

107. The report also states that the Department is on course to meet this PSA target. The baseline is Quarter 2 2005 when the employment rate for disabled people was 47%, and the gap between the rate for this group and the overall rate was 27.7%. The latest outturn data for Quarter 4 2007 show that the employment rate for disabled people had increased by 1.4% points to 48.4% and the gap between the overall employment rate had decreased by 1.1% points to 26.6%.[127]

108. We are not convinced that the Department is on course to meet its target with a decrease of the employment gap between disabled people and the overall population of just 1.1% in two years. We asked the Minister to clarify how the Department defines 'reduce significantly' in its target and over what period of time. The Department clarified that "the policy is judged successful if there is 'upward movement on the indicator in excess of sampling variability'. For disabled people this requires an upward movement in the employment rate of at least 1.41%."[128] However, the Department did not answer the important question, statistical error aside, of what sort of increase it would regard as a success.

109. We note the Government's long-term ambition for the overall employment rate of disabled people to match the employment rate of the general working age population. We believe this ambition is laudable but impractical. However, we are disappointed that the Government can claim to be on course with an upward movement in the employment rate of just 1.41%.

110. We recommend a more realistic long-term target accompanied by interim targets with a timetable for measuring progress. We recommend the Government sets an interim target over 5 years. By then we would expect the gap to have declined significantly. We also recommend that the Government monitors progress by physical impairment, mental illness and learning disability, as set out in the Labour Force Survey data, to ascertain whether more progress is being made in some groups of disabled people than in others.


111. Age Concern and Help the Aged believe that age equality in employment is a long way from being realised. Whilst in 2007 the employment gap between younger and older workers had reduced by 0.8% points from 2006, to a level of 2.7%, there is concern that the current difficulties in the economic climate may cause the employment gap between younger and older workers to rise again. Older jobseekers believe that employers' perceptions play a significant part in the difficulties that they face in returning to work. For instance, 63% thought that they were seen as too old by employers and 42% thought that they were seen as too experienced or over-qualified.[129]

112. Mr Harrop of Age Concern and Help the Aged stressed that "There is plenty more room to increase employment between the ages of 50 and 69 which is the current age range that DWP uses. There is no reason to think that it could not get significantly closer to the main employment rate."[130] In the UK in 2007, full-time workers aged 50-59 also earned on average (median) 6.5% less per hour than full-time workers aged 40-49, while those aged 60-plus earned an average of 20.1% less.[131]

113. A number of submissions have argued that one of the greatest obstacles to improving employment opportunities for older people is the continued existence of the statutory default retirement age in the Employment Equality (Age) Regulations 2006. The regulations were introduced to transpose the EU Directive 2000/78/EC into domestic legislation. They stipulate that a British employer can dismiss a member of staff without redundancy payments on that person's 65th birthday. They also give employees the right to request working beyond retirement age, which employers have a duty to consider. Help the Aged and Age Concern argue that: "the exemption in Regulation 30 allowing enforced retirement at the age of 65 is unjustifiable discrimination, contrary to fundamental human rights and principles of equality."[132]

114. According to a 2006 DWP survey conducted to establish the effects of the forthcoming legislation, 57% of establishments had no default retirement age but many have introduced one since the regulations came into force.[133] Age Concern and Help the Aged argue that a default retirement age creates a barrier to opportunities for selection, promotion, training and job mobility for people in their late 50s and early 60s. A study of people in their 50s and 60s who were still working revealed that 58% wanted to carry on working after 65 and 10% did not want to retire at all.[134] A survey carried out by the Age and Employment Network found that:

  • 89% of respondents were aware that there was legislation covering age discrimination in employment.
  • Only 63% claimed that they understood roughly what the legislation said and the rights that it gave them.
  • Just 13% agreed that the legislation had helped older people find work.
  • 38% had experienced age discrimination in the workplace[135]
  • 50% had experienced age discrimination in seeking employment.[136]

115. However, the CBI argued that the default retirement age has allowed businesses to plan their HR functions with greater certainty and that there is evidence that firms are also becoming more receptive to the concept of flexible retirement. The 2008 CBI/Pertemps Employment Trends Survey shows that:

"Almost a third (31%) of employees reaching retirement age postponed retirement in the last 12 months. More than four fifths (81%) of requests were granted, representing substantial increases on last year's results - 22% and 72% respectively.

"Employers of all sizes are offering extended working: nine out of ten requests are now accepted by employers with up to 500 employees, up from 55% in 2007. This suggests that smaller firms - without the HR capacity of larger employers - have adapted to the new regulations after testing the water in the first year.

"The total percentage of employees working post-retirement age has increased from 16% to 33%."[137]

116. The CBI argues that these figures suggest that firms have gained a greater understanding of how the new system operates in practice.[138] Mr Harrop of Age Concern and Help the Aged said "the key thing to watch is the average age that people leave the workforce. It has been improving in recent years and we will have to see what happens over the next few years. We will need to see over the long run that average retirement ages rise in line with life expectancy so that people spend roughly the same share of their adulthood in work as they do today."[139]

117. We asked the DWP Minister, Kitty Ussher, why she is not taking the single Equality Bill as an opportunity to review the policy and she responded: "We have made it clear that there will be a review of the default retirement age in 2011. There is not a consensus across the whole of society, so we are sticking to that timetable."[140]

118. Age Concern and Help the Aged argue that for many older people who wish to work past 65 years, this is too late.[141] About 25,000 workers are estimated to face default retirement at 65 in the UK every year, when they would be happy and able to carry on working. Shortly before the Employment Equality (Age) Regulations 2006 took effect, Age Concern, under the banner of its offshoot Heyday, applied to the High Court to have the regulations ruled unlawful. The Judge referred certain questions to the European Court of Justice (ECJ) for guidance. Age Concern challenged the regulations on two fronts. First, they argued that regulation 30, which permits employers to continue to compulsorily retire employees at the age of 65, was contrary to the EC Equal Treatment Directive. Second, they argued that the ability to 'justify' direct age discrimination had been drafted too widely.[142]

119. On 5 March 2009 the ECJ ruled that the UK's compulsory retirement age of 65 will not be in breach of EU rules on age discrimination, provided that the UK Government is able to justify having such an exemption from age discrimination laws. It will be for the High Court to decide this issue when the case returns for another hearing, probably later this year. The ruling thus does not resolve the question of whether the default retirement age is lawful.

120. Whilst it will be for the High Court to determine whether the compulsory retirement age is a justified exception to the principle of non-discrimination, the ECJ spelled out that such direct discrimination is only capable of being justified by reference to social policy objectives, such as those related to employment policy, the labour market or vocational training. Significantly, the ECJ went on to note that "[by] their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness."[143] The ECJ also cautioned that: "Mere generalisations concerning the capacity of a specific measure to contribute to employment policy, labour market or vocational training objectives are not enough."[144]

121. It is now for the High Court to decide how this part of the ECJ's ruling affects the UK Age Regulations. Essentially, the Government now has to demonstrate that giving employers the ability to justify direct discrimination has a social policy objective and is a proportionate means of achieving that objective. Even if the High Court decides that the regulations can still stand, it seems inevitable that they will be interpreted in a way that limits the reasons employers can rely on to justify direct discrimination.[145]

122. In light of the judgment by the European Court of Justice, we recommend that the Government removes regulation 30, which permits employers to continue to compulsorily retire employees at the age of 65. This regulation contradicts the Government's wider social policy and labour market objectives to raise the average retirement age and allow people to continue to work and save for their retirement.


123. This Committee's report Valuing and Supporting Carers was published on 29 August 2008, and DWP's response was published by the Committee as a Special Report on 19 December 2008.[146] The Committee's report found that one of the major reasons that carers struggle to remain in work is because of a lack of affordable, reliable and flexible care services. Carers who have had to give up work to care often suffer 'opportunity penalties', as through caring and being outside the labour market their vocational skills may become rusty or out of date, and over time they may lose confidence and feel out of touch with the world of work.

124. On 10 June, the Government published its ten-year vision for carers, Carers at the Heart of 21st Century Families and Communities. This outlined a range of commitments including improved provision of information and advice; breaks provision for carers; improved support from the NHS; and support to help carers combine work and care.[147]

125. The Committee's report drew attention to the enormous value to society of the unpaid support that carers provide (estimated at £87billion each year). It also noted that most informal carers are of working age, and that sustaining carers' ability to remain in work was not only of importance to many carers (and their employers) but was essential to the Government's aspirations of an 80% employment rate.[148]

126. Carers UK argue that many carers who are currently in work are at risk of falling out of work because of a lack of services and a lack of support at work and many carers who are not currently in work would like to work, but are not able to because of poor services, a lack of flexible working and the benefits trap. Almost a quarter of carers who responded to the National Audit Office's survey would like to do more paid work, but do not want to lose their entitlement to Carer's Allowance. Carers UK refer to research which shows that

  • only about a quarter of working carers felt they had adequate support from formal services to enable them to combine work and care;
  • over a third of working carers had considered giving up work to care;
  • 52% of carers working in the private sector said their employer was carer-friendly, compared with 68% in the public sector and 78% in the voluntary sector; and
  • of carers working part-time, 50% of those in the private sector, 44% in the public sector and 54% in voluntary sector said they only worked part-time because services were not adequate for them to work full time.[149]

127. Of those carers who were unemployed, or who described themselves as looking after home and family, but said they would like to return to work if suitable arrangements could be made to make this possible:

  • more than two thirds said their caring responsibilities had caused them to leave paid work,
  • more than three quarters said it was difficult to find a job that fitted with their caring responsibilities,
  • more than half said they would rather be in paid work but the services available to them did not make a job possible for them.[150]

128. Ms Holzhausen of Carers UK described her vision for greater equality for carers in employment as follows: "We would see an increase in the number of carers in employment and we would also see a decrease in the number of carers who felt they were forced to leave employment early."[151] We found in our inquiry that one in five carers gives up work to care; this can lead to loss of income, pension and long-term financial security. Carers have also been refused jobs on the basis of their caring responsibilities. Carers UK reports that "Comments which used to be asked regularly of women about their childcare responsibilities, and suggestions that they might not be completely committed to their work, are now targeted at carers."[152]

129. Some carers can and do return to work but many are unable to do so because of a loss of skills, confidence and networks. Carers frequently report problems in accessing training courses provided by their employers, for example, if these are held at weekends or during the evenings and no alternative care is provided. Even where employers take child care requirements into consideration they often overlook carers of adults. Carers UK reports that "CarersLine took on a case where an employer had paid alternative care costs to enable an employee with a child to attend training but was not prepared to do so for an employee caring for a disabled adult."[153]

130. Carers face problems especially when alternative care services are unavailable or inflexible. Many have to use their paid annual leave to cover care needs meaning they do not get a break themselves. Although some succeed in reducing their hours or changing their working patterns, many feel forced to look for a different type of work or to change their jobs. Carers UK suggests that at work some have also met with ignorance, disrespect or hostility because of their need to work flexibly: "a day centre in Halton was closed without properly consulting or considering carers' views; the resulting plans forced many parents to give up work in order to care for their adult sons and daughters because the more 'flexible' packages of care assumed they would provide the care in between."[154]

131. Carers also experience harassment and hostility at work from managers or colleagues. Comments such as the following from a carer employed in social services are common:

"There was a time when my son was poorly and when I came into work, the first thing they said was, 'Ooh, you've had time off again have you? You've been on holiday again, have you?' These sorts of things. She must have known why I was off, that my son was really sick, poorly. Even when I told her, she carried on with these comments and digs. Never once said, 'Oh I'm sorry, how is he? Is he OK?' Ironic when you think they are educational social workers supporting families where children have special needs."[155]

132. We believe that the legal position of carers in employment should be made clear to both employers and employees by extending protection from discrimination to carers as discussed before. DWP also has a role to play in improving its service to carers who access Jobcentre Plus services.

133. We recommend that DWP should support adults who become carers during their working lives to combine work and care and enable those who wish to return to paid work when caring ends or changes to do so. A 'joined up' intergovernmental approach is required to ensure that carers are supported in the wider social care system by adequate arrangements to inform them of their rights and entitlements and of how to access an appropriate range of support and services. Links must be made at a local level so that advisers are able to help carers find social care services in the same way they do with parents who need support to access childcare.


134. At present the manner in which volunteers are covered by discrimination law is very complex. There is no explicit exclusion of volunteering but caselaw has clarified that volunteers are rarely covered by the equality employment provisions and it is unlikely that they would be protected by the current goods and services provisions. Submissions argue that extending the protection of the law to volunteers would bring helpful clarification.[156]

135. The EHRC urges the Government to prohibit discrimination in relation to volunteering: "This is an issue which applies equally to all strands of equality. The government should act to protect volunteers against discrimination and harassment, not just on the ground of disability but also on other grounds."[157]

136. Age Concern and Help the Aged highlight the benefits of outlawing upper and lower age limits to volunteering: "the value of unpaid work contributed to the economy by older volunteers (formal and informal) in 2001 was approximately £5billion a year. Individually, older people would also greatly benefit from the increased activity, both physically and mentally, as well as developing their skills and actively participating in society."[158]

137. We strongly believe that discrimination legislation should apply to volunteering as it does to other aspects of day-to-day life such as access to goods, facilities and services, employment and education. Volunteers currently have less legislative protection against discrimination than someone going into a sweet shop. Better protection would also recognise the contribution of volunteering and its importance for disabled people as a route into employment. We recommend that the Government clarifies the position of volunteers in terms of protection from discrimination in the single Equality Bill.


138. Currently employment tribunals can only make recommendations that directly benefit the person who has been discriminated against. As around 70% of employees involved in such cases leave the organisation, this ties the hands of tribunals and reduces the scope for a broader influence on employer behaviour.[159] The Government's intention in the single Equality Bill is to give tribunals extended powers to make recommendations that employers amend their policies or practices.[160] The National AIDS Trust and the TUC welcome this measure which should encourage better employment practices.[161] The Disability Charities Consortium and the TUC argue that, in addition, tribunals should be given the power to order reinstatement. Mr Purton of the TUC stressed that "you have the remarkable effect of reaching many employers with a few of those well-publicised court judgments."[162]

139. Currently individuals who have been discriminated against have to shoulder the burden of bringing a claim. The Government is considering introducing representative actions, enabling bodies such as trade unions or the EHRC to take cases to court on behalf of a group of individuals.[163] Mr Harwood of the think tank Public Interest Research Unit said he welcomed this move: "We would quite like to see the EHRC do a lot more enforcement, especially in cases which will educate employers as to what the law requires." The Minister, Maria Eagle, confirmed that the Government is:

"looking at whether or not we can have representative actions and we are looking at how best we might be able to achieve that, simply because I think we do recognise that with an individual right to claim discrimination you are putting a big emphasis on the individual to go through the legal system. It is not an easy thing to do. It can be extremely stressful. It can be costly and there is no guarantee of success. It can take years."[164]

140. We welcome the Government's intention in the single Equality Bill to give employment tribunals extended powers to make recommendations that employers amend their policies or practices. We believe the Government should monitor whether this measure encourages better employment practices. We recommend that tribunals should also be given binding powers to order reinstatement in discrimination cases.

141. Relying upon individuals to bring about systemic change through individual litigation places a heavy burden upon them. It also places a heavy burden on employers and the tribunal system itself. We recommend that the Government introduces provisions for representative and class actions in the single Equality Bill, enabling bodies such as trade unions or the EHRC to take cases to court on behalf of a group of individuals. We believe this will benefit individuals, employers and the administration of justice.

Equality in recruitment

142. The EHRC reports that in DWP research disabled people identified recruitment as the most common source of discrimination.[165] The TUC refers to the Equalities Review in 2007, which found that disabled people faced one of the highest penalties when looking for work. It said that: "Not only are disabled people generally more likely to be out of work, but they are also more likely to exit work and, once out of work, they are less likely to move back into employment than non-disabled people and other groups."[166]

143. In 2005, the Chartered Institute for Personnel and Development (CIPD) found that 33.1% of CIPD members excluded people with a history of long-term sickness or incapacity, even though such policies would clearly be open to challenge under the DDA.[167] The TUC refers to CIPD evidence that shows that a third of employers admitted that they discriminated unlawfully against disabled people and the National AIDS Trust quotes CIPD findings that discovered that more than 60% of employers said they disregarded applications from people with drug or alcohol problems, a criminal record, a history of mental health problems or incapacity. More than half of respondents said nothing would persuade them to recruit from these 'core jobless' groups.[168]

144. The EHRC says: "although it is open to disabled people to challenge recruitment discrimination through the DDA, this is a very poor second best to reducing the actual incidence of discrimination in recruitment."[169]


145. In the UK, while there is no law that imposes an obligation on an employee (or a prospective employee) to provide specific information on health, there is also no law to stop an employer from asking health-related questions. When people apply for a job, there may be questions on the application form about medication or having a medical condition. They may also be asked whether they have a disability. In both the United States and a significant number of EU member states such questions are unlawful.[170]

146. The Disability Rights Taskforce recommended in 1999 that disability related enquiries before a job offer should be permitted only in very limited circumstances.[171] This recommendation was also made by the Disability Rights Commission in 2003. The Government rejected this proposal, but most submissions consider there is still a clear and pressing need that such questions prior to job selection should be prohibited.[172] Ms Scott-Parker of the Employers' Forum on Disability said:

"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."[173]

147. Many employers still ask medical questions about applicants' disabilities prior to job interview and selection. This enables employers who wish to discriminate to simply reject disabled applicants at an early stage. The Minister, Maria Eagle, acknowledged that: "If you have an employer who is thinking of discriminating anyway, a pre-employment questionnaire can be bad."[174] She added that "It would be illegal to use such questionnaires to discriminate. That is quite clear."[175] However, Mr Azad of the National AIDS Trust stressed that: "when it comes to recruitment it is often very difficult to demonstrate that discrimination has actually taken place."[176]

148. Mr Willman of the Federation of Small Businesses (FSB) reported that his clients experience discrimination in recruitment: "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."[177] The Minister, Maria Eagle, suggested that: "It is certainly not compulsory to reveal that you are a disabled person."[178] Ms Scott-Parker argued that people may have good reason why they would not want to reveal their disability: "I am particularly struck by this case in the press at the moment where a woman who did not declare that she had a mental health history has been told that, had she declared it, they would never have hired her, which is as good a reason for not declaring as I can think of."[179]

149. However, if someone lies in a job application in relation to their health status and this is later discovered, they could lose the job. Research reveals that one in ten employers has withdrawn a job offer because the applicant had lied or misrepresented their health situation on the health-screening questionnaire. 7% of employers have dismissed an employee while in employment for the same reason. Withdrawn job offers or dismissal on these grounds is twice as common in large organisations.[180]

150. An individual's health and disability may well be relevant to his or her suitability for a particular job. Even where an employer is willing to provide reasonable adjustments it may not be possible for someone to fulfil a particular role. There is therefore a place for appropriate and relevant health-related questions (and medical examinations) as part of some recruitment processes. Ms Williams of the CBI stressed that: "from an employer's perspective, there does come a point, […] the duty of care that an employer owes, to be satisfied that this candidate is suitable for the job. Obviously the questionnaire needs to be tailored for the role and the responsibility and the duties, but to ban them outright creates a potential difficulty for organisations because there will come a point where that assessment needs to be made."[181]

151. There could then be cases where a job offer is withdrawn because of health-related concerns or because reasonable adjustment for a disability is not possible. Mr Azad of the National AIDS Trust agreed: "Should it become apparent that there is either a disability for which no reasonable adjustment is possible or some health issue which cannot possibly be addressed, then it is possible to withdraw the job offer but the process is transparent and someone can, if they really feel it is necessary, make a complaint and we would all understand what the issue is."[182]

152. In limited circumstances, to be clearly defined, it could be appropriate to ask health-related questions in advance of a job offer, where a particular state of health is absolutely necessary for the specific role: where, for example, there is an absolute prohibition on persons with certain health conditions taking on particular healthcare roles.

153. Prohibition of pre-employment health-related questions is found in several European countries: Spain, France, Italy, Belgium, Portugal and the Netherlands. In the United States employers cannot ask people if they have a disability until after a job offer has been made. The Americans with Disabilities Act 1990 states that employers: "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability."[183]

154. Pre-employment questionnaires are only allowed if they relate to "the ability of an applicant to perform job-related functions." This ensures that it is easier to recognise cases where employers have discriminated against potential applicants. 16,000 charges are filed under the Americans with Disabilities Act every year.[184]

155. We asked the Minister, Kitty Ussher, if the Government would consider banning pre-employment questionnaires in the single Equality Act and she said: "we keep every policy under review and we obviously have the evidence internationally. We think they serve a useful purpose and, as we have both said, it is illegal to discriminate on the basis of disability. Those cases should be taken through the legal system if there is evidence."[185]

156. 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.


157. A number of submissions argued that the DDA offers more protection for those in work than for those seeking work.[186] Although disabled people in DWP research identified recruitment as the most common source of discrimination, there are far fewer Employment Tribunal cases for discrimination in recruitment than for in-work discrimination.[187] Disability Rights Commission research finds that

"Fewer than one in ten cases are recruitment cases (dismissal cases being the most common). Recruitment cases are less likely than cases under other subjurisdictions to succeed at tribunal. The previous research tentatively suggested a number of possible reasons for this pattern, including:

  • the (actual or perceived) greater difficulty in meeting the burden of proof in recruitment cases, compared with those under other sub-jurisdictions;
  • the relative lack of availability of support and advice to potential applicants in recruitment cases (compared, for example, with those in dismissal or reasonable adjustment cases, for whom Trade Union or other support may be more easily accessed);
  • a lower willingness of legal advisers and others to take recruitment cases, compared with cases under other subjurisdictions."[188]

158. Mr Sandbach of Citizens Advice said: "The problem with where the DDA applies to recruitment is there is an assumption at the front end of the recruitment process that the DDA does not really apply, […] even though clearly within legislation it does, and it is harder to establish."[189] Mr Harwood of the Public Interest Research Unit added: "The research I have seen does seem to suggest there is a lot of discrimination right across the recruitment process and in putting out adverts to make the final selection. I also get the impression it is very hard to take a case to a tribunal. For most applicants it will not be worth a candle."[190]

159. Ms Williams of the CBI acknowledged that: "it is much more difficult across any of the strands of discrimination to establish discrimination at the recruitment stage compared to the employment stage."[191] Ms Casserley of the Discrimination Law Association argued that: "Discrimination cases generally are very hard to win because it is very rare that someone will overtly discriminate. […] People can use what is called a questionnaire procedure to get information about why they were treated in the way they were treated. Those sorts of questionnaires are very underused and they are a very useful tool for people. I think one of the other issues as well is that when someone brings a claim it is often quite a difficult process and there is often not the support or the advice there; there is no legal aid available for employment tribunals."[192]

160. We have heard that the Employment Tribunal cannot make any recommendations about what the employers should do because they are only allowed to make recommendations that will affect the individual person. Ms Casserley argued that this is a real disincentive for people to take cases: "it is quite difficult for individuals to look at that process and think that that is something they should go through because something good will come out at the end of it; that is not always the case."[193] She added that: "Certainly representative actions would be a very useful tool and the ability to make recommendations beyond the individual situation so that if an individual brings a claim about recruitment the employer has to do something to address that situation and to address the future for other people."[194]

161. We asked the Minister, Maria Eagle, whether the Government is considering giving tribunals this wider power to make recommendations in relation to employers' recruitment processes. She confirmed: "it is something we are looking at whether we can do in the legislation. There are clearly circumstances where it might prove very useful. There are other circumstances where it may not make much difference but it is something we are looking to see whether or not we can achieve in the Bill."[195]

162. There is a sharp discrepancy between disabled peoples' perception that discrimination in recruitment is a major problem and the number of cases taken to employment tribunals. Our recommendations for representative and class actions and wider powers for tribunals to make recommendations on employers' policies and practices, including recruitment processes, are particularly relevant in improving compliance and enforcement of equality in recruitment.

163. We also recommend that the Equality and Human Rights Commission takes a strategic approach to improving enforcement by taking on cases in recruitment to improve compliance with the law. It should conduct more strategic research in this area and launch investigations into discrimination in recruitment, where appropriate.

164. We agree with the Equality and Human Rights Commission that legal challenges to discrimination are a very poor second best to reducing the actual incidence of discrimination in recruitment. We recommend that the Government launches an information campaign for employers and employees to promote the case for employing disabled people and tackle the false perception that they would be a burden to business.


165. The Employers' Forum on Disability states that "barriers created by inaccessible technology are not acceptable. This includes inaccessible on-line recruitment, inaccessible and unusable IT systems, and inaccessible 'e-commerce' processes." [196] Ms Scott-Parker of the Employers Forum on Disability said: "We did some research about three or four years ago, at which point 85% of all the on-line sites that we looked at were inaccessible. It was preventing 1.3 million people from applying. It is not just the site itself. […] I guess one of the tests I have for the new legislation is that it would enable individuals and maybe groups - and it would give blind people not being able to apply en masse for this job - some redress in law. It has to somehow be drafted in such a way that it is clearly addressed."[197]

166. However, the Minister, Maria Eagle, did not see any need for this to be addressed in the new Bill: "This is a big awareness and culture issue, as much as us having to change the law. I think the law is already in the right place."[198] She added that "There is a role here for the Equality and Human Rights Commission […]. That is something which I expect it would take an interest in and perhaps think about using some of its enforcement powers to look at more closely. I think that is an appropriate way."[199]

167. We are extremely concerned by the evidence from the Employers' Forum on Disability that 85% of online recruitment sites were inaccessible and that 1.3 million people were being prevented from applying for jobs. If the employment rate for disabled people is to be improved, this should be a priority for the Government and the Equality and Human Rights Commission to address.

168. We recommend that the Equality and Human Rights Commission conduct more research into the extent of the use of inaccessible technology in the recruitment process, with a view to taking further action in raising awareness of the problem amongst employers and launching its own investigations.

109   Comparable figures are not available for all of these groups prior to 2001. Back

110   Ev 197 [DWP] Back

111   Ev 114 [Cloisters] & Ev 164 [DLA] Back

112   Q 67 Back

113   Q 67 Back

114   Ev 141 Back

115   Q 7 Back

116   Q 67 Back

117   Definition: The data covers all working age adults (males aged 16-64, females aged 16-59) who report they are in employment (including self employment). Respondents who report a current disability consistent with the Disability Discrimination Act are defined as disabled. Respondents who experience multiple difficulties are asked to identify their main area of difficulty. Data is for Great Britain.

Note: All previously published Labour Force Survey figures have slightly changed due to the recent re-weighting of the survey population. Figures over time are very volatile due to small sample sizes. Due to small sample sizes for particular impairment types, it reports solely 95% confidence intervals.


118   Ev 56 Back

119   Q 5 Back

120   Ev 127 Back

121   Elford J, Ibrahim F, Bukutu C, Anderson J, Social and economic hardship among people living with HIV in London, HIV medicine 2008; 9:616-624 in Ev 56 [NAT] Back

122   Q 160 Back

123   Q 48 Back

124   Q 106 Back

125   DWP Departmental Report 2008 Cm 7401 May 2008 Back

126   DWP Departmental Report 2008 Cm 7401 May 2008 Back

127   DWP Departmental Report 2008 Cm 7401 May 2008 Back

128   Ev 231 Back

129   Ev 97 [Help the Aged and Age Concern] Back

130   Q 44 Back

131   Ev 98 [Help the Aged and Age Concern] Back

132   Ev 96 Back

133   Survey of employers' policies, practices and preferences relating to age, DWP, 2006 in Ev 97 [Age Concern & Help the Aged] Back

134   Age Concern, Have Your Say, survey in Heyday (2006), reported in the Equalities Review (2007) in Ev 97 [Age Concern & Help the Aged] Back

135   The Age and Employment Network, Survey of Jobseekers Aged 50+ (2008) in Ev 97 [Age Concern & Help the Aged] Back

136   Ev 97 [Age Concern & Help the Aged]  Back

137   Ev 228 Back

138   Ev 230  Back

139   Q 43 Back

140   Q 174 Back

141   Ev 97 Back

142   Eversheds Healthcare HR e-briefing: Age discrimination - Heyday case 30 September 2008 Back

143   Eversheds HR e-briefing: European age discrimination ruling with a sting in its tail 11 March 2009 Back

144   Gay Moon ECJ rules on the Heyday challenge to the UK age regulations March 2009 Back

145   Eversheds HR e-briefing: European age discrimination ruling with a sting in its tail 11 March 2009 Back

146   Work and Pensions Committee Valuing and Supporting Carers HC 485-I Fourth Report of Session 2007-08


147   HM Government Carers at the heart of 21st century families and communities: a caring system on your side, a life of your own June 2008 Back

148   Work and Pensions Committee Valuing and Supporting Carers HC 485-I Fourth Report of Session 2007-08 Back

149   Ev 233 Back

150   Ev 233 Back

151   Q 84 Back

152   Ev 131  Back

153   Ev 131 Back

154   Ev 131 Back

155   Ev 131 Back

156   Ev 93 [DCC], Ev 98 [Age Concern & Help the Aged], Ev 128 [RNID], Ev 150 [EHRC] Back

157   Ev 150 [EHRC] Back

158   See for example M Lee on behalf of the Inquiry Board, Improving services and support for older people with mental health problems, the second report form the UK inquiry into mental health and well-being in later life, published by Age Concern England (August 2007) in Ev 98 [Age Concern & Help the Aged] Back

159   Ev 61 [NAT]  Back

160   Ev 83 [TUC] Back

161   Ev 61 [NAT], Ev 83 [TUC]  Back

162   Q 71 Back

163   Ev 61 [NAT] Back

164   Q 189 Back

165   Gewal,I, Joy, S, Swales, K, Woodfield, K, Disabled for Life, attitudes towards and experiences of disability in Britain, DWP2002 in Ev 149 [EHRC] Back

166   Ev 83 Back

167   CIPD (Summer/Autumn 2005) Labour Market Outlook in Ev 185 [CAB] Back

168   Ev 83 [TUC], Ev 61 [NAT] Back

169   Ev 150 Back

170   Ev 219 [NAT, Terrence Higgins Trust, Rethink] Back

171   The Taskforce recognised that employers have legitimate needs to ask disability-related questions:

when inviting someone for interview or to take a selection test, employers could ask if someone had a disability that may require reasonable adjustments to the selection process

when interviewing, employers would be allowed to ask job related questions, including if someone had a disability which might mean a reasonable adjustment would be required

for monitoring purposes

in relation to the guaranteed interview scheme. Back

172   Ev 219 [NAT, Terrence Higgins Trust, Rethink], Ev 149 [EHRC], Q 142 [EMPLOYERS' FORUM ON DISABILITY]  Back

173   Q 142 Back

174   Q 185 Back

175   Q 185 Back

176   Q 64 Back

177   Q 141 Back

178   Q 186 Back

179   Q 138 Back

180   Ev 220 [NAT, Terrence Higgins Trust, Rethink] Back

181   Q 143 Back

182   Q 64 Back

183   Ev 221 [Nat, Terrence Higgins Trust, Rethink] Back

184   Ev 221 [Nat, Terrence Higgins Trust, Rethink] Back

185   Q 188 Back

186   Ev 141 [Employers' Forum on Disability], Ev 149 [Equality and Human Rights Commission], Q 8 & Q 9 [Discrimination Law Association], Q 73 [Citizens Advice & Public Interest Research Unit]  Back

187   Ev 141 [Employers' Forum on Disability] Back

188 Back

189   Q 73 Back

190   Q 73 Back

191   Q 147 Back

192   Q 8 Back

193   Q 8 Back

194   Q 9 Back

195   Q 190 Back

196   Ev 141 Back

197   Q 143 Back

198   Q 191 Back

199   Q 192 Back

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