New Clause 20

Part of Equality Bill – in a Public Bill Committee at 1:00 pm on 7 July 2009.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 1:00, 7 July 2009

I go back to the point about reasonable adjustments. The Minister had some concerns about whether reasonable adjustments would be able to take  place if we prohibited pre-employment inquiries. In the amendments tabled by my hon. Friend, I thought that we tackled those concerns because we referred to allowing the inquiries as far as reasonable adjustments were necessary. Proposed subsection (2)(a) of new clause 20, tabled by the hon. Member for Stroud, specifically states that

“the inquiry is for the purpose of determining whether an applicant requires reasonable adjustments...and is stated as being such an inquiry”.

If that were the case, the inquiry would be allowed. It is absolutely right—we do not want to stop employers making those reasonable adjustments or those applying for jobs to be able to set out what reasonable adjustments they need.

The hon. Gentleman raised a specific constituency example, which was about someone with a mental health problem. If we look at the range of the organisations supporting the measure, they are largely those that deal with invisible disabilities such as mental health problems, HIV or AIDS. Clearly, if someone had a visible disability, for example if they were a wheelchair user, it would be a bit obvious, and the question about the pre-employment inquiry would become moot. The issue is when we are talking about questions for those with invisible disabilities. The evidence that was given by the various supporting organisations, such as the Royal College of Psychiatrists, the Disability Charities Consortium, Rethink and the EHRC disability committee, makes it clear that they support, not necessarily the new clauses, but similar provisions, as do the National AIDS Trust and RADAR. I think that they are powerful recommendations.

Given the relatively positive way in which the Minister addressed the issue when she responded to a previous debate, and given that she speaks for the Government on such matters, I want her to look at the work that the Select Committee on Work and Pensions did on the issue. When that Committee was looking at the Bill and how disability equality fitted within a single equality Act, it looked at the issue in some detail. It went back to 1999 and looked at what the Disability Rights Taskforce recommended, which was that

“disability related enquiries before a job offer should be permitted only in very limited circumstances.”

The Disability Rights Commission made the same recommendation in 2003. At the time, the Government rejected the proposal. Susan Scott-Parker, from the Employers Forum on Disability, an organisation which the hon. Member for Stroud mentioned, said to the Work and Pensions Committee:

“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.”

Susan Scott-Parker had a clear view from business that detailed pre-employment questionnaires serve no useful purpose. In its report, the Work and Pensions Committee made a clear recommendation:

“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.”

That is important. When the Minister responded to the previous debate, she made the point that if someone went through the process and was discriminated against, they could take action. One of the problems people find is producing the evidence of that. Someone who has received a conditional job offer and who knows that they are the best person for the job will be given reasons why the job offer is being withdrawn. It is much clearer if they are given reasons. They can argue about them. They can bring a case. The evidence is clear. They know that they were going to be given the job and the employer has to have some reasons.

The difficulty for people who are weeded out during the recruitment process is that they do not know whether they would have been given the job. They do not know whether their health disclosures were the reason for them not being interviewed or not being given the job. They do not have that information. Bringing a case is very difficult here. The Work and Pensions Committee’s view was clear. The Government’s response to that view was nowhere near as encouraging as what the Minister told us in Committee. Paragraph 42 of that response states:

“The Government is not convinced of the need to outlaw pre-employment disability-related enquiries, particularly because the information provided can help the employer to decide what reasonable adjustments, including any adjustments to the recruitment process, the disabled person may require.”

I thought both our amendment and the new clauses tabled by the hon. Member for Stroud deal with that perfectly satisfactorily. They make it clear that inquiries can be made of the person applying for the job specifically about the recruitment process and they allow those inquiries to take place for that purpose only. That point is dealt with. Clearly someone who has a mental health disability or a condition such as HIV, which has no impact on the recruitment process at all, does not have to disclose anything. Paragraph 43 of the Government’s response reads:

“The Government recognises that some employers require a health declaration. However, the employment provisions in the Equality Bill make it unlawful to use information about a person's disability to discriminate against that person. Any disabled person who considers that the employer has discriminated against them because of their disability may take action under new procedures for settling internal disputes which the Government has made simpler and more flexible since 6 April 2009. They can also make use of the DL56 Questions Procedure. Formal enforcement action may be taken by making a claim to an Employment Tribunal, where the burden of proof falls on the employer to show that it has not discriminated.”

There are two points there. The first, which I have already touched on, is that once it is thrown back on the individual to have to prove they have been discriminated against, it is much more difficult for them to prove that it was because of disability-related conditions if they are discriminated against at a very early stage in the process. If they have had a conditional job offer withdrawn it is a much more straightforward process. An employer has to be much clearer about the reasons for the withdrawal of that job offer.

I do not find the first part of the reasons set out in paragraph 43 very compelling. The second is not entirely right. I am sure that the Minister will touch on that when she responds. If I remember correctly from some  of our earlier debates, at an employment tribunal the burden of proof does not fall on the employer to show that he has not discriminated until the employee has demonstrated a prima facie case that there has been some discrimination. I am not entirely certain that that is right in fact. Even so, requiring the employee to take that step when they may have very little evidence at their disposal is very difficult.

The Minister’s response to this matter on 18 June was quite positive. She said that she would go away and have a look at it to see whether our arguments held water. The Government’s later response—the response dated 23 June from the Minister with responsibility for disabled people to the Work and Pensions Committee—was much less positive. It would be helpful if the Minister could outline those differences.

It is worth considering the information we had from the National AIDS Trust on the pre-employment questionnaires. The trust highlighted the response to the Work and Pensions Committee, said that it was sadly not encouraging and encouraged members of the Committee to raise the matter again. It said that the Government had asked whether banning the use of questionnaires would encourage more recruitment of disabled people, and it supplied a case study from the Terrence Higgins Trust report, “21stCentury HIV”, which contained a quote from an individual:

“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.”

We need to stop situations such as that, where people feel there is no point. As soon as they see the application form and they know that there is going to be detailed questions about their health, many people—a bit like the constituent of the hon. Member for Stroud—do not even go through the process. They have had so many knock-backs and rejections that as soon as they see that they face questions about their health, they do not even want to go there. That is what we are challenging.

An earlier debate and the quote that I read from Susan Scott-Parker of the Employers Forum on Disability make it clear that business is very relaxed about the change and would positively welcome it. In our evidence-taking sessions, I asked all the employer organisations  whether they would have any issues if the Government legislated to rule out pre-employment health questionnaires, apart from in the case of allowing information to be gained for making reasonable adjustments, and they were all very relaxed about it. Businesses have had concerns about a number of clauses introduced in the Bill, but this is one area where the Government could legislate with the support of a wide range of disability organisations, and business, if not actively supportive, would not have any issues. Given what the hon. Member for Stroud said in our previous debate and the Solicitor-General’s positive response, even if she feels that she cannot accept the new clauses, I urge her to give a commitment that the Government will think about this and bring forward their own, perhaps better drafted, measure on Report. The Committee will find that a positive step.