The UK has fallen behind other countries in protecting employees from unfair discrimination in employment on the basis of their genetic make-up. The US, France, Sweden, Finland and Denmark have already introduced legislation prohibiting genetic discrimination.
Back in 2002, the Human Genetics Commission reported that there was no evidence that employers in the UK were systematically using genetic test results to recruit. That perhaps explains why legislating in this area is not high on the government’s agenda. But this situation is likely to change.
There are already signs that genetic information is being used by employers outside the UK in making recruitment decisions. The International Labour Organization published a report in May 2007 noting concerns about the increasing use of genetic information by employers, citing instances of its use by employers in Germany, the US and Hong Kong.
Developments in genetics are regularly published. In June, the Wellcome Trust identified more than 10 genes as playing a part in common diseases such as diabetes, rheumatoid arthritis, Crohn’s disease, coronary heart disease and Bipolar disorder.
There’s no doubt that the use of genetic information by employers will become increasingly likely as genetic testing becomes cheaper, more accurate, and able to test for a broader range of conditions, so the UK needs specific legislation to regulate the use of genetic information by employers.
While the Disability Discrimination Act 1995 (DDA) provides some protection for employees and job applicants, it does not protect those who have a genetic predisposition to certain conditions. But is there a good reason for this?
If we accept the principle that employment decisions based on actual medical conditions must be justified by the employer, then decisions based on a predisposition to certain conditions should be treated similarly. Such a policy is also likely to have clear benefits from an HR perspective. Decision-making based on unfair discrimination rarely makes good business sense.
Experience shows that people can be subject to unfair treatment for conditions they may develop even if they have no symptoms, because of misunderstanding or prejudice. HIV is a case in point.
The exceptions
That is not to say that employers should not be able to use genetic information in some circumstances.
Employers have a legitimate need to use medical information in recruitment decisions and at other important points in the lifecycle of an employee. Just as the DDA strikes a balance by requiring an employer’s use of such information to be justified, that same policy should apply to the use of genetic information.
However, legislation that simply restricts the use of genetic information may not be enough.
Persuasive arguments exist for protecting an employee’s right not to know certain genetic information, regardless of how that information is used.
Employees may have very good reasons for not wanting to know what genes they carry and what diseases they may suffer in later life. A young woman may not want to know if she carries a gene that predisposes her to breast cancer. She should not have to choose between that right and a job without very good reason.
To decide otherwise could have serious consequences for the protection of civil liberties.
Key points
- Although there is limited evidence of genetic testing by UK employers, it is likely to become more common.
- The DDA should be extended to protect employees who have a predisposition to developing certain genetic conditions to prevent unfair discrimination in employment.
- The Information Commissioner’s code on Employment Practices provides guidance on an employer’s right to access and use personal information (including genetic information).
- Legislation should go a step further, by restricting employers from requiring staff to undergo genetic testing.
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US Bill prohibits discrimination based on genetic conditions
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