Have you had an interview where you were suddenly asked about your sick record, an injury or disability? If so, under the new Equality Act of 2010 that came into force at the start of last October, that would now probably indicate an illegal act of discrimination was imminent. But what does ‘probably’ mean?
This new law has been introduced in order to attempt to regulate recruitment procedures. After all, how often have you sat in an interview believing that you were probably ideal for the job but later discovered that the job offer had gone elsewhere – possibly to a less-deserving candidate? Despite every technological or administrative advance, interviews are still largely about how you get on with the interviewer. They are highly subjective, in other words.
Until now, some employers have been sending out pre-recruitment questionnaires prior to the interview. Under the new Act, these will have to be very carefully worded otherwise the employer will leave themselves wide open to legal action.
Let’s consider an example of how this might apply.
We’ll take the case of someone who is blind and who has a guide dog to accompany them. They are applying for a job as a manager in a factory.
There are three stages to the employment process – pre-application, interview and acceptance.
Pre-application stage
It is perfectly permissible to offer to accept verbal applications or to provide readers who can fill in the applicant’s answers for them. It is not acceptable to pre-screen would-be applicants by dint of their level of disability although it is OK to make an official note of the disability (but see below for how that note can be used).
Interview
Prior to the interview, and as part of the application form if the company so chooses, it is perfectly legitimate for them to ask about the disability in the context of what special arrangements might be needed. For example, to have someone on-hand who can take our blind applicant through the factory (the guide dog may not appreciate overhead or less tangible dangers or, possibly, it might get spooked by the hubbub). If there is a written aptitude test (or similar), then a reader/data entry person may be necessary. Does the blind person need to be accompanied from the car park? Are there enough disabled parking spaces?
While it is perfectly legal to ask questions about the disability (‘How long have you been blind?’, ‘Can you see anything at all?‘), the way in which these answers are used to decide the award of a job is now strictly controlled.
Acceptance
If the interviewer has sole responsibility for selecting the successful candidate, they are not supposed to take into account any disability per se. Their final assessment of suitability should be conducted solely on the basis of deciding a candidate’s fitness for performing the principal functions of the specified job.
As a result, if the questions posed at interview are seemingly irrelevant (asking our blind person about their lack of sight when the majority of their work is phone-based), then the interviewer may leave the company open to a discrimination lawsuit. On the other hand, if the questions have related to extra facilities required for the company to provide then that does not indicate a negative perception of disabled people – in fact it shows the opposite.
If the interviewer is not solely responsible for selection then the information obtained at interview stage pertaining to our blind applicant’s disability, should be withheld. That way, there can be no possibility of prejudice in the final selection.
Unfortunately the new law is far from clear about exactly what can and cannot be asked however it is a fair bet that there will be no shortage of test cases and that the general tone will be towards transparency regarding the selection process.
If you are being quizzed about your disability or health then ask yourself:
- Is it in order to help me complete my application?
- Is it so that the company can assess the facilities they will need to provide for me at interview or in-post?
- Is it so that they can decide if I am capable of performing the principal functions of the job?
- Is it in order that they can be seen to comply with diversity requirements? (If this is the case, then they are supposed to ask for this information on a separate questionnaire and not on the main application form).
If you answered ‘yes’ to any of these then you are not demonstrating that discrimination has taken place.
If you are provisionally approved but then turned down as a result of a medical examination then the employer is supposed to have discussed with you and the doctor about adapting the job before you were formally rejected. Obviously this is not always possible – someone who has ambulatory problems, for example, cannot reasonably be considered for a job that involves a lot of climbing ladders. On the other hand, if it was over rough terrain, might a quad bike be the answer?
Despite efforts to the contrary, it’s all going to end up being highly subjective and, accordingly, very messy.
For the record, this post was written by an officially-recognised disabled person.
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