Clause 36

Equality Bill – in a Public Bill Committee at 4:15 pm on 18th June 2009.

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Employees and applicants

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families) 4:30 pm, 18th June 2009

I beg to move amendment 165, in clause 36, page 26, line 22, at end insert—

‘(1A) An employer (A) discriminates against a person (B) in the arrangements in subsection (1)(a) if A fails to take reasonable steps to ensure that—

(a) the selection for interview is carried out on an anonymous basis, or

(b) the person selecting for interview does not know the gender, race, sexual orientation, age or marital status of B or whether B has a disability.’.

This amendment protects job applicants from subliminal discrimination arising from information assumed from an applicant’s name. It also prevents information being made available to people short-listing that reveals whether an applicant has protected characteristic.

On Second Reading, I floated the idea of anonymous applications for jobs. For members of the Committee who were not present for that debate, I will explain the premise. The idea began when I had two interns with the surnames Hussein and Patel. They told me that they had applied for hundreds of jobs and had not been accepted for interview for any. It is not too hard to conclude that that had something to do with their surnames and recognition of their ethnicity. They were both bright, wonderful interns who went on to far better things than helping me.

Much of the Bill is about the discrimination that is found once one is in work. This proposal takes a step back and considers why people might be excluded at the written application stage. People could be subliminally excluded by a human resources department or an individual who is reading a CV, without there being any intention to discriminate. In a name, one can recognise ethnicity, gender and age. We would not wish any of those things to be barriers at that first stage. Once people get through to interview all will be revealed, but at that stage personality can mitigate any subliminal bias.

When children take exams, we do a similar thing to eliminate any bias from the examiner or marker—give children a candidate number for their GCSE, AS-level and A-level papers. There is no reason why written application forms could not use something like the national insurance number so that unconscious discards did not happen to the same degree.

I did not realise that floating this idea on Second Reading would create such a hoo-hah in the personnel world. I have been supported by two big employer organisations, one of which is the Chartered Institute of Personnel and Development thinks that the idea has great merit. Although businesses often moan that equality can be expensive, this measure could eliminate some unconscious discrimination without costing anything.

The other side of the personnel world is very concerned and upset. In a Personnel Todaypoll, 73 per cent. of the 300 respondents did not like the idea, but I have a view that the personnel industry might not like an idea that could mean some of its control being removed, as it would see that as a challenge to its expertise. However, organisations that represent personnel and employment agencies, are keen because this is a simple measure. I am not sure why there was such a hoo-hah: it seems like a sensible suggestion and would be minimal in terms of effort and expenditure. I therefore hope to find some support for it.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

This proposal was raised on Second reading by the hon. Lady and we promised to consider it. She obviously wants to make employers take reasonable steps not to acquire information in the early part of recruitment exercises that would identify applicants as having specified protected characteristics. The purpose of that would be to avert subliminal  discrimination. Many small and medium-sized businesses might struggle to put the necessary provisions in place, as they do not have dedicated HR staff and it might be difficult.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families)

I ran this as an experiment in my own office, as we are effectively small businesses. It really put no strain whatever on us.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I would find it difficult in my office to firewall myself off so that I did not know anything at all about the details of a person who had presumably been offered an interview by my personal assistant. I do not think it would be so straightforward for small businesses to do it.

Some HR managers have responded to the hon. Lady raising the matter on Second Reading, with most being against. They oppose the amendment on grounds including—probably not justifiably—that it presupposes that recruitment processes are inherently discriminatory. However, they also say that the proposal is unworkable in relation to the obligations on reasonable adjustment. The Chartered Institute of Personnel and Development appears to support the amendment, but has said that it would rather see it promoted as good practice, not legislation.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families)

There was no inference that personnel or human resources are discriminatory. This is all about unconscious barriers. I am aware that the chartered institute thinks it should be voluntary—that is a fall-back position, because it would promote best practice—but I was hoping for a stronger recommendation, just because I genuinely think it is a good idea.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I had no notion of thinking that the hon. Lady intended to allege discrimination, which is why I said that it is perhaps not the objection from human resources managers, of which there have been manifold, that we ought to take most seriously. However, they do talk about the proposal being simply unworkable, and it is important not to suggest that an organisation supports legislative proposals when in fact it is saying that this may be a good idea, although it thinks it should be not in legislation, but only good-practice guidance.

Photo of John Mason John Mason Scottish National Party, Glasgow East

The Solicitor-General used the word “unworkable”. I want to raise the practicalities of this. My gut feeling is that I like the idea, and it might rule out some problems, but I am thinking, too, of some jobs where the number of people who apply is quite limited. For example, all the applicants might be known because they are well-known in the industry or whatever. I wonder how the practicalities would work out.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

That is a valid point and perhaps what we ought to do is experiment, which is what we are seeking to do in that the Department for Work and Pensions has carried out a CV research exercise. Two carefully matched applications or CVs with names recognised as having different ethnicities have been submitted in response to the same advertised vacancies to see whether employers make different decisions depending on the names in the CVs. That research will be reported in the summer—I am sorry that I do not have an answer now, having tantalisingly mentioned the subject.

The initial indications are that there is significant discrimination, so more work needs to be done to find an appropriate solution. I imagine that members of the Committee know that an early-day motion on discrimination against people suffering from HIV or mental illness has been tabled, calling for the Bill to restrict the use of pre-employment questionnaires.

I think we will return to this issue, but if the hon. Lady is reassured that we are looking at it in the careful way that I set out and is happy that we should wait for the results, I encourage her to withdraw the amendment. Although she has talked about anonymity only, does not her amendment also suggest that the person selecting for interview should not

“know the gender, race, sexual orientation, age or marital status” at all? That would be a tall order. There would be no name or gender, so who could the interviewee be? If the hon. Lady is thinking about names, she has a point, which we should look at when we have the research.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families)

Yes, the amendment is essentially about names. I am heartened by what the Minister has said. The issue needs investigation. If the work being done by the DWP demonstrates significant discrimination at the application stage, she will want to introduce either recommendations for best practice or guidance.

Following the Minister’s reassurance, I am more than happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I beg to move amendment 207, in clause 36, page 26, line 22, at end insert—

‘(1A) An employer must not ask for details of an applicant’s health or disabilities before an offer of employment to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the recruitment process.’.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss the following: amendment 208, in clause 36, page 26, line 34, at end insert—

‘(3A) An employer must not ask for details of an applicant’s health or disabilities before an offer to which subsection (3) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 209, in clause 52, page 40, line 27, at end insert—

‘(1A) An employment service-provider must not ask for details of an applicant’s health or disabilities before an offer to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 210, in clause 52, page 41, line 5, at end insert—

‘(4A) An employment service-provider must not ask for details of an applicant’s health or disabilities before an offer to which subsection (4) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 211, in clause 54, page 42, line 20, at end insert—

‘(1A) A trade organisation must not ask for details of an applicant’s health or disabilities before an offer of membership to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Amendment 212, in clause 54, page 42, line 34, at end insert—

‘(4A) A trade organisation must not ask for details of an applicant’s health or disabilities before an offer of membership to which subsection (4) applies has been made except in so far as necessary to make reasonable adjustments to the selection process.’.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

The amendments are similar to but more narrow than the previous group. They would limit an employer’s ability to produce a pre-offer questionnaire—in other words, to get information from job applicants about their health or disabilities in advance of the interview or of making a decision. That particularly involves illnesses or disabilities that would not be visible during the interview, such as mental illness, HIV and so forth, the aim being to ensure that such issues are not a factor in a decision on a job offer.

The details of any illness or disability would not be revealed until after an offer was made. At that point, it would become much harder for a potential employer to back out having made the offer. The discussion would be more likely to be framed in such terms as, “Okay, what reasonable adjustments will you require and how can we ensure that we are making them?” Therefore, the application and job selection process would be more likely to be fair and equitable.

Some of the amendments acknowledge that it may sometimes be necessary to ask in advance of an interview whether a job applicant has special requirements to gain access to the interview. Such information may be required on that basis, but that is a much narrower point and a practical requirement rather than anything else.

The provisions have support from a wide range of external organisations. The submission from the Royal College of Psychiatrists says:

“Evidence tells us that people with mental health problems face serious discrimination in the employment process, notably through the attitude of employers”.

The Disability Charities Consortium says:

“A snapshot poll by Mind conducted in October 2008 found that 1 in 4 people had job offers withdrawn after disclosing a mental health problem, despite this being illegal under the Disability Discrimination Act. There is also evidence that disability and sickness-related information do not predict a person’s level of absence in work.”

As a final example, Rethink says:

“Fewer than four in 10 employers would consider employing someone with a history of mental health problems, compared to more than six in 10 for candidates with physical disability.”

The important thing is to ensure that a structure is in place that encourages employers not to make decisions based on inadequate information or fear, which are often what underlie discrimination, rather than malice. Where malice exists, that must clearly be dealt with as well, but the important thing is to ensure that employers are given every opportunity to do the right thing, and the amendments aim to create that kind of environment. I hope, therefore, that the Minister will be able to offer us some reassurance that the Government are favourably disposed to them, or at least willing to consider them, given the breadth of support outside this place for such measures.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 4:45 pm, 18th June 2009

I am glad that the amendments have been tabled. Like amendment 165, which we have dealt with, they arise from concerns about the potential use of information gathered during recruitment to sift out candidates, in this case because of disability. I understand those concerns. The amendments would restrict the disability-related information that employers, service providers, employment service providers and trade organisations could gather before a job, service or membership decision. They would be allowed to gather only what information they needed to enable reasonable adjustments to be made.

We have general worries about imposing mandatory restrictions by legislation in that way. There are also specific worries about the practicalities of the proposals, such as what sorts of inquiry the employer could make without receiving information that could be used to discriminate and how the employer would know where the boundary lies. Of course, if a person believes that information that they have given about their disability at an interview has been used to discriminate against them, they can already take action. There is no difficulty about doing so. I wonder slightly what the amendments would add, but I see that the hon. Gentleman is about to tell me.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I am sure that the Minister will be far more aware than the rest of us that the number of successful applications to courts to bring the kind of action that she is describing is tremendously low. It is much more difficult to deal with pre-employment discrimination than discrimination after getting a job. I am sure that she is aware of the figures showing that it is much rarer for someone to do so successfully at the moment. Anyway, surely we ought to be trying to create an environment that raises the chances of success by allowing employers to do the right thing as well as threatening to beat them with a big stick, particularly because the provisions that she described that allow potential cases to be brought have been in place for a long time, and most of the available evidence shows that they are not having the effect that I am sure we would all want.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I agree completely that it is a cumbersome, difficult and personally trying process to take an action in respect of disability discrimination, and that it is not easy to prove that it was the disability that played either a partial or an exclusive role in the lack of recruitment. The position is not straightforward, so it is all the better if we can devise some mechanism to ensure that discrimination cannot take place because there is no information on which it can be based.

Although I know less about it than about the strand of work that I referred to, I understand that the DWP is considering the matter as well. There is, of course, nothing to prevent firms from making their own efforts to reduce the chance of such discrimination. We are worried about putting it in legislation rather than putting good guidance in place when we have more evidence. Although we invite the hon. Gentleman to withdraw  the amendment—we would resist it—we will consider it, because it is a difficult issue, and I am glad that it has been raised.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

There is broad support for the proposal. In our private discussions with business organisations, whether representing small or large businesses, and in the evidence that they gave during our evidence sessions, they were all relaxed about that approach. No issues were raised at all. Also, it works very well in the United States.

Given what the Minister said about the extensive research that the DWP is doing to see whether names give rise to discrimination, will she, at a suitable opportunity—perhaps she can write to us—answer this question? If the DWP is either currently doing or would commit to doing similar research, and if as a result there were some clear evidence that satisfies the Department—although the representations that we have had have been fairly unanimous—will the Minister be willing to consider tabling amendments on Report or in the other place? If that is the case, we will be suitably reassured.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Another point that I should make—in fact, there seem to be two—is that we would delay the time in which the question of reasonable adjustments needs to be addressed. That might make difficulties for an employer. The hon. Gentleman is right—there are outlawing provisions for pre-employment inquiries in the US—but we do not know whether that element of protection is used. Nor do we know whether it has had any effect on the recruitment of disabled people.

That is the crux of the issue. If we ban the introduction of such information at that early stage, will we encourage more recruitment of disabled people? We do not know that. However, I am engaged with the issue and am impressed by the arguments. Therefore, I urge the hon. Member for Weston-super-Mare to withdraw his amendment and to let us consider the issue. I will either write or speak directly to him about the matter in Committee.

Photo of John Penrose John Penrose Shadow Minister (Business, Innovation and Skills)

I cannot pretend that we are overwhelmed by the Minister’s response, but we recognise the good will with which she is trying to approach the issue. We will wait and see what is in any letter or communication that she writes to us. We are concerned that there may not be enough in that, and we will look to press the issue at a later stage if necessary. However, on the basis that she has promised to write to us and to consider the matter further, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clause 37 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.—(Lyn Brown.)

Adjourned till Tuesday 23 June at half-past Ten o’clock.