Summary
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- Recognise that there is a statutory duty under the Equality Act 2010 for employers to safeguard against discrimination on grounds of disability, and that this applies not only to existing employees but also to potential job applicants.
- View the recruitment process in its entirety, from advertising the position through to selection. At each stage, ensure that practices and policies do not discriminate against disabled applicants and consider any reasonable adjustments that may be required.
- Remember that the duty is to make adjustments that are reasonable. What is reasonable is dependent on factors such as the size of the business and the disruption likely to be caused by making the adjustment. It may not always be possible or reasonable to implement the necessary adjustments.
- Ensure that only qualifications and requirements that are relevant and necessary for the performance of the role are stipulated in the advertisement, person specification or job description.
- Establish whether or not an applicant requires any reasonable adjustments for the interview.
- Do not ask questions about a candidate’s health or disability before offering him or her employment, unless this is for a reason allowed under s.60 of the Equality Act 2010.
- After making a conditional or unconditional job offer, discuss with the employee what, if any, reasonable adjustments he or she would require in relation to the work.
- Ensure that the consultation and decision-making process relating to any adjustments is adequately documented, preferably by means of standardised forms.
- If using a recruitment agency, ensure that the agency is aware of its duty to make reasonable adjustments.
The duty to make reasonable adjustments
Employers are under an obligation to safeguard employees against discrimination in the workplace because of disability. It is well recognised that reasonable adjustments must be made to assist disabled employees during the course of their work, but this duty also applies to recruitment and selection.
Under s.20 of the Equality Act 2010, an employer has a duty to make reasonable adjustments where a provision, criterion or practice, or a physical feature of its premises, has the effect of placing a disabled person at a “substantial disadvantage” (defined as one that is more than minor or trivial) when compared with persons who are not disabled. The employer must take such steps as it is reasonable to have to take to avoid the disadvantage.
In addition, s.20 imposes a requirement on employers to take such steps as are reasonable to provide a disabled person with an auxiliary aid where this would prevent him or her being at a substantial disadvantage. It also sets out a specific requirement for employers to take reasonable steps to ensure that information is provided in an accessible format, where this will avoid a disadvantage to a disabled person.
The duty to make reasonable adjustments was introduced by the Disability Discrimination Act 1995 (DDA), which was repealed and replaced by the Equality Act 2010 from 1 October 2010. The provisions of the Equality Act 2010 relating to reasonable adjustments are similar to those in the DDA, but the requirements relating to the provision of auxiliary aids and information in an accessible format were not in the DDA.
The Act expressly provides that the duty to make reasonable adjustments extends not only to current employees, but also to applicants for employment.
Employers should consider issues of disability discrimination throughout the recruitment and selection process, from formulating the job specification and advertising the position through to appointing the successful candidate. At each stage there are practical measures that employers can take to ensure that they comply with the Equality Act 2010.
When is an adjustment reasonable?
Section 18B(1) of the DDA outlined factors that could be relevant in determining whether or not an adjustment that would be necessary to prevent the applicant being at a disadvantage was “reasonable” for the purposes of the DDA. These factors are not included in the Equality Act 2010, but are set out in the draft Equality Act 2010: code of practice on employment (PDF format, 2.97MB). Employment tribunals must take into account the contents of the finalised code when interpreting the Equality Act 2010 in relevant cases. The draft code states that factors that could be taken into account when deciding what is a reasonable adjustment include:
- whether or not making the adjustment would be effective in preventing the disadvantage;
- the practicability of making the adjustment;
- the financial and other costs;
- the extent of any disruption caused;
- the extent of the employer’s financial or other resources;
- the availability to the employer of financial or other assistance; and
- the type and size of the employer.
Section 18B(2) of the DDA provided a list of examples of steps that an employer might need to take. This list is not included in the Equality Act 2010, but the draft code includes the examples from s.18B(2) (see Disability discrimination – reasonable adjustments in the XpertHR quick reference section). Some of the examples that could be applicable to the recruitment process, rather than the working environment for disabled employees, include making adjustments to premises, modifying instructions, providing an interpreter, and providing supervision or other support.
Advertisements
When advertising vacancies, employers must not publish a job advert that indicates that the recruitment decision will be determined to any extent by reference to whether or not the candidate has a disability or by a reluctance to put in place reasonable adjustments.
The advert should include a statement that the employer is an equal opportunities employer and will provide reasonable support to disabled applicants throughout the recruitment process. It should include an invitation to potential applicants to contact the employer to identify any additional support that they might require to enable them to make an application.
If an employer is advertising the position on its own website, or an external recruitment website, it should consider whether or not the website is designed to be accessible for people with disabilities. For example, the employer should ensure that the website is compatible with screen-reading software used by people with visual impairments.
Employers should consider whether or not qualifications or requirements stipulated in the advertisement, person specification or job description could have the effect of disadvantaging a candidate with a disability, or discouraging potential candidates who would be able to perform the role with reasonable adjustments in place from applying. Only requirements that are relevant and necessary for the performance of the role should be stipulated. For example, a requirement for candidates to have a driving licence should be included only if driving is central to the role and it would not be reasonable for the person to use other forms of transport where required. Similarly, employers should specify minimum academic qualifications only if these are genuinely required for the role. Some disabled candidates may not have had the opportunity to obtain the required qualifications if they have not been in mainstream education, but may still be able to demonstrate the skills, knowledge and ability required for the role. Employers should be prepared to waive a requirement if it is not essential to the role, or to make a reasonable adjustment to enable the candidate to meet the requirement.
Application forms
Employers should ensure that application forms are available in formats that are appropriate for applicants who are visually impaired: this might include large print, Braille or audio. It is advisable for employers to consider this at the beginning of the recruitment process, rather than waiting for an applicant to request an application form in an alternative format, as it may take some time to arrange for such provision. Staff involved in administrating the recruitment process should be trained in how to obtain alternative formats, to ensure that any request is dealt with efficiently and that the candidate is not dissuaded from going through with the application.
Employers should also consider the design of the standard application form, to ensure that the layout is easy to follow and that the font does not present difficulties for people with visual impairments. For some candidates, this could prevent the need to request a form in a different format.
Employers should also consider allowing candidates not to use the application form, but to present the required information in a different way, for example by recording verbal information.
Shortlisting
Whether or not a candidate has a disability should not play any part in the employer’s decision on which candidates to shortlist for interview. Where an applicant is suitably qualified, the employer should offer him or her an interview.
Some employers have a policy of offering an interview to all disabled candidates who meet the minimum requirements for the role. This is one of the commitments that employers are required to make under the Government’s “positive about disabled people” scheme, which allows employers to use the “two ticks” symbol on their job adverts.
Interview
The duty to make reasonable adjustments applies to the conduct of the interview itself. Therefore, employers should ask applicants whether or not they will require any adjustments at the interview stage. It is important that this is a process of constructive dialogue with candidates to ensure that appropriate measures are in place to facilitate effective interviews.
Section 60 of the Equality Act 2010 restricts the circumstances in which employers can make enquiries about an applicant’s health or disability during the recruitment process. However, s.60 does not prevent employers from asking questions for the purpose of establishing whether or not the duty to make reasonable adjustments will arise in relation to an interview or assessment process.
Discussion with the candidate prior to interview may identify specific measures that need to be taken at the interview stage. These might include making changes to the location of the interview, for example to enable wheelchair access, or the provision of an induction loop to assist an applicant with a hearing impairment.
Depending on the particular requirements of the candidate, it may also be necessary for the employer to provide an interpreter, for example for a candidate who communicates by means of sign language. There are a number of organisations that provide such services but, as with other types of reasonable adjustment, it is important for employers to plan ahead to avoid undue delay to the recruitment process.
Employers should be aware that some candidates may benefit from having the interview at a particular time of the day, for example if they have a condition that causes them to be drowsy at certain times of the day, they need to take medication or eat at specific times, or they have difficulty using public transport during the rush hour. Employers should be prepared to be flexible about the timing of the interview.
Some candidates may benefit from having someone to meet them from public transport, or in the car park, to accompany them to the location of the interview.
If candidates are required to undertake any form of test as part of the recruitment process, as with the application form, it may be necessary for the employer to provide the instructions for the test in an alternative format, and to allow the candidate to present his or her answers using an alternative method. It may also be necessary for the employer to allow the candidate additional time to complete the test, or to provide him or her with a reader or scribe. Employers should also give consideration to whether or not tests, including any medicals, are necessary for the performance of the job.
Questions about reasonable adjustments required for the role
The draft Equality Act 2010: code of practice on employment (PDF format, 2.97MB) states that any information on disability or health obtained by an employer for the purpose of making adjustments to the interview or assessment arrangements should, as far as possible, be held separately and should not form any part of the decision-making process about an offer of employment, whether or not conditional. It also states that: “questions about reasonable adjustments needed for the job itself should not be asked until after the offer of a job has been made (unless these questions relate to a function that is intrinsic to the job)”.
Under s.60 of the Equality Act 2010, the employer can ask questions relating to the candidate’s health or disability if this is for the purpose of establishing whether or not he or she will be able to carry out a function that is intrinsic to the work concerned. The code gives the example of the ability to climb ladders being intrinsic to the work of a scaffolder.
Section 60(7) states that, where the employer has a reasonable belief that the duty to make reasonable adjustments would apply, a “function that is intrinsic to the work concerned” means one that is intrinsic to the work after the duty has been complied with. One of the reasonable adjustments that could be made to the work could be to adjust the role so that the particular function is less important. Therefore, it is arguable that the employer would not be allowed to ask whether or not reasonable adjustments would be needed if, with those adjustments in place, the function in question would not be intrinsic to the work.
It is unclear whether or not s.60 allows employers to ask pre-offer questions for the purpose of establishing whether or not the duty to make reasonable adjustments would exist in relation to a function that is intrinsic to the work, should the applicant be successful. This is an area where further guidance from the tribunals and courts is necessary.
The focus of the interview should be the person’s ability to do the job, in terms of his or her skills and experience, with questions on his or her disability restricted to very specific questions on his or her ability to perform a function that is intrinsic to the role. Exploration of whether or not the duty to make reasonable adjustments applies, and whether or not there are any reasonable adjustments that could be made, should be left until after the employer has made a conditional or unconditional job offer.
Selection
Ultimately, selection should be based on merit and a candidate’s disability should not discourage an employer from offering him or her the job if he or she is otherwise suitably qualified; this would create the risk of a claim under the Equality Act 2010. However, if, for reasons unconnected with the candidate’s disability, he or she would not be the best candidate for the job, there is no obligation on the employer to select him or her. Throughout the entire recruitment process it is important for the employer to remember that the disabled candidate is a qualified applicant who may have some additional needs in the workplace, not a “problem” to be addressed. This may not always be easy, particularly if it appears that significant measures will be required to enable the applicant to perform the role effectively, but the employer should approach the issue from a positive standpoint.
Enquiries about health or disability following a conditional job offer
The employer can make a job offer conditional on satisfactory health checks (provided that the requirements relating to the candidate’s health do not themselves amount to unlawful disability discrimination). After making a conditional offer, the employer can make enquiries about what, if any, reasonable adjustments the employee would require in relation to the work. Whatever the requirements, the employer should handle this process of consultation with the candidate with sensitivity. It should not make assumptions about the candidate’s capabilities or the level and nature of support that he or she might require. The employer should identify whether or not it needs to make adjustments in consultation with the applicant.
If the candidate is subsequently employed, the employer should record the results of the consultation process and the details of adjustments that have been agreed, ideally by means of a standardised form that lists both the adjustments to be made and the reasons for making them. This record will be valuable in ensuring that the adjustments are maintained (for example if there is a change of line manager), in monitoring the effectiveness of the adjustments and in rebutting any potential disability discrimination claim by the employee.
Agencies
If an employer is using a recruitment agency to find candidates, or is hiring temporary agency staff, it should ensure that the agency is aware of its duties under the Equality Act 2010 to make reasonable adjustments. An organisation using an agency can be liable for discrimination carried out by the agency acting on its behalf, but there is a defence if the organisation can show that the agency was acting without its authority. The employer should give clear instructions to the agency that it must not discriminate against disabled candidates and must put in place any reasonable adjustments required.
Non-disabled applicants and the Equality Act 2010
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One final issue to be considered is to what extent it is lawful to discriminate in favour of a disabled applicant at the expense of non-disabled applicants during the recruitment and selection process. The duty to make reasonable adjustments to accommodate the requirements of one candidate could be viewed as a form of positive discrimination. However, such positive action is allowed in relation to disability and, indeed, the Act creates a statutory duty to this effect. Section 13(3) provides that treating a disabled person more favourably than a person who is not disabled does not amount to discrimination against the person who is not disabled.
The author: Janice Nairns is a freelance writer and academic
