A new clause has been added to the Equality Bill to discourage employers from asking job applicants about their health in the early stages of recruitment.

The aim of the new clause is to “prevent a disabled person from being screened out solely on the basis of their disability without first being given the opportunity to show they have the skills and competencies for the job,” according to government minister Vera Baird, who is piloting the bill through the House of Commons.

No outright ban
The new clause 60 is quite complex. There will be no outright ban on asking health-related questions. Instead, the clause aims to make it easier for unsuccessful job applicants to prove unlawful disability discrimination if an employer asks about their health and then decides not to progress their application before the first interview or assessment stage of the recruitment process. It reverses the burden of proof in those circumstances; in other words, it puts the onus on the employer to prove that its decision was not disability related (or, if it was, that it was not unlawful), should the candidate bring a tribunal claim.

The important thing to bear in mind is that employers won't be prevented from checking that a prospective employee is able to do the job. However, if the bill becomes law it will be sensible for most employers to avoid asking health-related questions until the later stages of a recruitment exercise.

There will be exceptions to the rule. For example, it will still be acceptable to ask an applicant if there are any adjustments that should be made to the recruitment process itself to compensate for the effects of a disability. Inquiries aimed at monitoring diversity in the range of applicants will also be allowed, although employers will need to be careful how, and by whom, this information is collected and reviewed – they will need to avoid any suggestion that it might have been taken into account by those responsible for short-listing candidates.

Conservative MPs have suggested that the bill should go further and prevent employers from requesting details of an illness or disability until after making a provisional job offer. It will be interesting to see whether the new provision is toughened up when the bill is debated in the House of Lords.