36. Joint memorandum submitted by National Aids Trust, Terrence Higgins Trust and Rethink
National Aids Trust (NAT), Terrence Higgins Trust (THT) and Rethink recommend that the forthcoming Equality Bill prohibit the use of pre-employment health-related questions which are not directly relevant to the candidate's ability to do the job they have applied for.
NAT, THT and Rethink would like the Government to use the Equality Bill to prohibit the use of pre employment health questionnaires before the offer of a job has been made.
Sadly people living with HIV or with mental illness still face discrimination; employers often do not understand that today someone living with such conditions can have a fulfilling and busy career. The lack of understanding about such stigmatised conditions and the advancement of treatment means that many employers will discriminate against people with HIV, mental illness or other disabilities, once disclosed, even if they are the best candidate for the job.
A recent Rethink survey of more than 3,000 mental health service users found that half of the respondents felt that they had to hide their mental health problems and 41% were put off even applying for jobs because of the fear of discrimination from employers. People with HIV also repeatedly cite the job application process and fear of health or disability-related questions as a deterrent to seeking or changing jobs. Disabled people in DWP research identified recruitment as the most common source of discrimination.
It is estimated that fewer than 50% of people diagnosed with HIV are in paid employment - with the result that about one in three report not having enough income to cover their basic needs. People with mental illness have the highest 'want to work' rate of any group of people with disabilities. Yet the actual employment rate for this group is one of the lowest: 13.3% compared to 59% for those with difficulty hearing.
The current reforms of the benefits system are designed to encourage people with disabilities back into appropriate work where possible. Also, Public Service Agreement 16 commits the Government to improving employment rates for people with severe mental illness. Whilst we strongly share this ambition to increase employment amongst disabled people, and thus reduce poverty and social exclusion, it will not succeed if we focus only on disabled persons and ignore barriers amongst employers.
Continuing discriminatory attitudes amongst employers
The need for this protection is illustrated by the Chartered Institute of Personnel and Development (CIPD) findings from 2003 that discovered that more than 60 per cent 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. Furthermore, research carried out by Rethink highlights the fact that fewer than four in ten employers would consider employing someone with a history of mental health problems.
If employers were only permitted to ask people to fill out a health questionnaire after the offer of a job had been made, this would guard against this discrimination and make discrimination when it occurs much easier to prove. We believe it would have a substantial impact in encouraging people with disabilities, especially those which are stigmatised, back into employment.
This recommendation was also made by the Disability Taskforce and then again by the Disability Rights Commission in 2003.
This example from THT's report 21st Century HIV illustrates the discrimination experienced in the job application process:
'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.'
The example below is from Rethink's recent report, Breaking Down the Wall,
"I have an honours degree in Education but never got to teach in spite of many interviews. At this point I had only been in the mental health system for less than two years. The Job Centre made me re-train and I did a Business Admin course, but I couldn't even get a job in filing after 86 applications. I felt useless, rejected and the motivation and enthusiasm I had struggled so hard to retain, was fast disappearing.
It had a huge impact on my mental health. I lost all belief in myself and seemed to lurch from one mental health crisis to another. I felt as if I had diagnostic labels stamped on my head and when people approached me and saw them - they turned away."
Health-related questions and deception
If someone lies in a job application in relation to their health status and this is later discovered, they could lose the job (this is called a breach of mutual trust). 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. Seven per cent 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. This is particularly relevant to people living with HIV or with mental illness as people's experience of stigma and discrimination mean that some are unwilling to disclose their status on health-screen questionnaires in advance of a job offer being made.
How would a prohibition on pre-employment health-related questions work in practice?
An individual's health and disability may well be relevant to his or her suitability for a particular job. There is a legal obligation not to discriminate on grounds of disability but 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.
We are not arguing that such questions should never be asked - but most health- or disability-related questions should only be asked after a conditional/provisional job offer has been made. 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. The process would be transparent, and where there is disagreement as to the decision, further consideration or mediation are possible, and complaint if appropriate to an Employment Tribunal in instances of discrimination.
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.
Other national jurisdictions
Prohibition of pre-employment health-related questions
is found in a significant number of comparable developed countries. For example
in many European countries (
Under the terms of the Law of 12 July 1990, employers do not have the right to ask health-related questions in job interviews. If such a question is asked, candidates have the right to give incorrect information, without this being used against them if their condition are disclosed or discovered at a later stage. In addition, job applicants may make appeal to the Labour Inspectorate.
Portuguese Labour Code that came into force on 1st December 2003 forbids
medical examinations in the workplace, except those necessary for protection of
third parties or the worker themselves. This can be interpreted as indicating that HIV testing for jobs is illegal in
1998, it is unlawful for employers in the
It is not only
in Europe that the
"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"
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 applicant: 16,000 charges are filed under the Americans with Disabilities Act every year. 
NAT, THT and Rethink all share a commitment to supporting as
appropriate those with stigmatised disabilities such as HIV or mental health
problems back into work. Too many people in the
Irrelevant and inappropriate health-related questions prior to job offer are a major deterrent to job application for those with stigmatised conditions. Prohibiting such questions will encourage people with disabilities back into work, deter discriminatory behaviour from employers, and where discrimination does take place, make it much easier to identify and address. Prohibiting such questions will not force employers to appoint someone unable, even with reasonable adjustments, to fulfil the role.
About NAT, THT and Rethink
NAT is the
THT is the
Rethink, the leading national mental health membership charity, was founded over 30
years ago to give a voice to people affected by severe mental illness. Today, with over
7,800 members, we remain determined that this voice will continue to be heard. We help
around 50,000 people every year through our services, support groups and by providing information on mental health problems.
 Rethink, Stigma Shout 2008
 see for example 'Outsider Status' NAT/Sigma Research 2005
for life, attitudes towards and experiences of disability in
 Social Exclusion Unit (2004) Mental Health and Social Exclusion
 CIPD (October 2005) Labour Market Outlook: Survey Report Summer/Autumn 2005
 'Disability Equality:Making it happen' Disability Rights Commission April 2003
 Labour Market Outlook: quarterly survey report - Autumn 2007' (2007) Chartered Institute of Personnel and
 DWP Research Report 2002