HR Focus - December 2009

We wish all our readers a Merry Christmas and a Prosperous New Year!

The Equality Bill and Disability Discrimination

New amendments to the draft Bill provide that  pre-employment health questionnaires can be proof of discrimination

The Equality Bill is passing slowly through the legislative process and is receiving amendments along the way as a result of the consultation process.  One important addition appeared last week.  A new section 60 applies to enquiries about disability and health prior to offering employment.  As presently drafted, the section will allow an unsuccessful candidate who has given information about a potential disability on a pre-employment questionnaire to use that as evidence of discrimination.

It will be a defence for an employer to show that the information required on the questionnaire was necessary in order to:

1.      establish whether it would be necessary to make reasonable adjustments in order to undergo the interviewing process,

2.      monitor diversity in the range of people applying for the position,

3.      take action over increasing the representation of disabled people in the workplace,

4.      establish whether a particular candidate has a disability that is necessary for the particular employment in question

These limited defences do not include the most common reason for requiring the completion of a pre-employment questionnaire: to weigh up the state of health of the candidate in relation to future attendance and performance at work.  The purpose of the draft section is to outlaw this practice.

The Bill is not yet law and, indeed, may not survive a general election in its present form. However, employers should be aware of the considerable burden such a change will impose on them if they continue to use pre-employment health questionnaires.  Disappointed applicants have always been able to use the argument that questionnaires are potentially discriminatory and employers have been able to rely on other non-discriminatory reasons for failing to appoint.  This will change.  Employers will only be able to justify the use of questionnaires if their purpose is to encourage the employment of disabled people.  Without this element, it will be implied that their purpose is to limit access to the workplace and this will be directly discriminatory.

In this month’s edition:

Discrimination by association

Following the decision in Coleman v Attridge Law, Erica Bedford, Trainee Solicitor in the Liverpool team considers just how far reaching it's implications might be.

Extension of transitional arrangements for Working Time Regulations

Paul McFarlane, Partner in the London office looks at the EU Commission's decision on extending the transitional arrangements in respect of working time for doctors in training.

Discrimination issues in recruitment

John McArdle, Paralegal in the Liverpool team highlights some of the pitfalls employers might face when recruiting.

Question and answer

And in our regular Question and Answer section, Michael Berriman, Partner in the London team answers the query:  “We are recruiting a new director and I am keen to include physical and mental examination in the interview process. Can applicants refuse, and how would I need to document the findings and considerations if, for example, I decide not to hire a candidate with a bad medical record or a heart condition?”

As a seasonal addition, we also look at the problems that the festive activities can generate.