Creating a fairer Britain
You don’t have to ask job applicants to fill in an application form or even to give you a CV or job history. But you’re likely to want to find out what skills, qualities and experience they have which would make them the best person to do the job.
Regardless of how you get the information about someone, you must not use what they say to discriminate unlawfully against them. For example, do not reject applications because of a person's sex, race or another protected characteristic which you have found out from the information given. This would be direct discrimination.
If you reject an application because of someone’s age, you must be able to objectively justify this.
You are also not allowed to make pre-employment enquiries about a job applicant’s disability or health record except in specific circumstances.
If you reject applications because you apply a requirement which has a worse impact on people with a particular protected characteristic, then unless you can objectively justify the requirement, this may be indirect discrimination.
An employer decides to reject applications from anyone who has had a career break. This would have a worse impact on some people who share a particular protected characteristic, such as women, who are more likely to have taken a break to have a family, and transsexual people, who have taken a break to undergo gender reassignment. Unless the employer can objectively justify the requirement for the successful applicant not to have had a career break, this is likely to be unlawful indirect discrimination.
If the applicant who is rejected for this reason is a disabled person, it may be discrimination arising from disability.
If you know, or could reasonably be expected to know that an applicant is disabled, and reject their application because of something connected with the person’s disability, this will be unlawful discrimination arising from disability unless you can objectively justify your decision.
Do not ask for personal details which you will not use to make a decision and which could allow for discrimination to take place – or may just make someone think that you’re asking for it so you can discriminate, which puts you at risk of a tribunal claim. You are very unlikely to need this sort of information to decide who can do the job best.
Questions on marital status or childcare arrangements.
But also, equality law places restrictions on the sorts of health and disability-related questions you can ask before the point at which you offer a person a job.
Name and contact details are usually all you need by way of personal information at this stage (as opposed to information about someone’s skills, qualities and experience). Other personal information, for example, date of birth or marital status for a pension scheme, can be asked in confidence once someone gets the job.
If an applicant asks for information about the job and the application form (if you’re using one) to be given to them in an alternative format which they require because they are a disabled person then you must provide this, so long as it is a reasonable adjustment – and it is likely to be. This could be information in large print, electronically or as an audio file. Everyone in your organisation who is involved in the recruitment should be told what they have to do.
A person applies for a job and asks for information in large print format because they have a visual impairment. An administrator dealing with this does not understand what they are being asked to do and is not aware of their own or their employer’s duty to avoid discriminating against disabled people. She ignores the applicant's request and the applicant is unable to apply for the vacancy. This is a failure to comply with the duty to make reasonable adjustments.
If it is a reasonable adjustment to do so, you must be prepared to accept an application in an alternative format. However, the applicant will probably want to submit an application in a format which suits you as the employer. For example, they may usually use Braille to read and type but could send their application to you as a word processed document electronically.
In general, you must not ask a job applicant questions relating to health or disability. So don’t ask on the application form or ask someone to say anything in a covering letter with a CV or in a letter of application or on a separate questionnaire (unless this is a monitoring form) about their health or disability.
Instead, ask whether someone has the relevant skills, qualities and experience to do the job, not about their health or about any disability they may have.
One of the exceptions to this rule is that you can ask a question to find out if a disabled person needs a reasonable adjustment during the recruitment process itself.
But don’t ask for this information on the application form. Ask applicants to tell you this on a separate document or using a covering letter that does not contain any information relevant to deciding whether to take their application further.
Keep this information separate from the rest of the information an applicant gives you about themselves, whether this is on an application form or not. This will make sure that the information is not used to discriminate unlawfully against them, and that you will be able to show that it hasn’t.
The easiest way to make sure the information about reasonable adjustments is not used in the wrong way – to exclude a disabled person from the application process – is to make sure the person or people deciding which applicants to take through to the next stage of the process don’t see the information about reasonable adjustments before making their decision.
If you are making this decision by yourself (for example, if your organisation is very small), then you must be careful not to let your knowledge of the fact an applicant needs reasonable adjustments influence your decision whether to take them through to the next stage.
You only have to make adjustments if you know, or could be reasonably expected to know, that a disabled person has applied or may apply for the job. But you must do all that can reasonably be expected to find out whether this is the case and what, if any, adjustments an applicant requires.
When inviting job applicants for interview, an employer asks applicants to say if they have any disability-related requirements for interview and states that the employer will make reasonable adjustments. This is the right approach, so long as the employer does not then use any information the applicants give to discriminate against them.
Don’t ask in a way that might be intrusive or that violates the disabled person’s privacy or dignity.
Do not ask anything that is not about making reasonable adjustments to the application process, unless one of the exceptions applies.
Do not use what the person says about reasonable adjustments to make any other decisions that are part of the application process.
An employer asks a specific question when they invite job applicants for interview: ‘Do you require any adjustments because of a disability?’ and offers to answer any questions applicants have about the interview process to help them work out if they need to ask the employer for anything. The employer is also clear whether or not the interview will take place in a building with level access (i.e. if there are stairs, there are ramps or a lift) and if a hearing loop is available. This is the right sort of approach.
However, applicants do not have to respond to this request and, unless you could otherwise reasonably be expected to know that a job applicant is a disabled person, you will not be under a duty to make adjustments. However, if an applicant discloses at a later stage that they are a disabled person, or you could reasonably be expected to know that they are, you must then consider whether they need reasonable adjustments.
This is so that this information is not shown to the people choosing applicants. They can then focus completely on what each applicant says about how they meet the requirements of the job, rather than (even accidentally or subconsciously) taking account of irrelevant considerations such as someone’s age, sex or ethnicity.
An exception to this would be if an employer had decided to use positive action in the recruitment for that job; if this is the reason for asking for particular information, this should be made clear on the form. Or you should ask applicants’ permission to allow the people making the recruitment decisions to see their monitoring form.
A woman who has taken several years out of paid employment while her children were very young has been the secretary of her local tenants’ and residents’ association. This has given her valuable skills in administration and co-ordination, and has meant she has kept her IT knowledge up-to-date. An employer does not take account of her unpaid experience but only focuses on her last paid job some years before. They do not gain an accurate picture of her skills, qualities and experience and miss out on recruiting a good employee.
A disabled person applies for a job working at a community centre. The applicant does not have any formal qualifications or experience of paid work. However, the volunteering they have done for local charities means they have experience of organising meetings and contacting people to encourage them to take part in activities. An application form that asks about ‘relevant experience, paid or unpaid’ would highlight this in a way that a form that only asked about ‘previous employment’ would not.