Equality Bill

I am really grateful to be called an eminent lawyer by one so knowledgeable as the hon. Gentleman, but he is talking about the criminal law, not the civil law, in which burdens of proof shift to fulfil policy obligations. I hope that I have made that clear, but I say again that to ask health-related questions and rely on the information given to not select a disabled candidate will be unlawful. Some Opposition Members would have preferred a provision that prohibited health and disability-related inquiries until the point that a job offer was made, but as we have developed the provision, we have had to take account of a range of recruitment processes. There are situations in which the ability to ask health and disability-related questions is essential during the recruitment process. For example, for some jobs with genuine health and fitness requirements, the candidate has to undergo a fitness assessment before a job offer is made. To delay that assessment until the point of the job offer would unduly delay and disrupt established recruitment processes. That is a fairly clear position. The new clause strikes the right balance between protecting disabled people from prejudicial discrimination and permitting employers to seek information about health and disability, but only where it is appropriate to do so. It sets out that they will be able to ask health and disability-related questions at the application stage in four specific circumstances, without taking what I will call the "tribunal risk". First, an employer may make inquiries to identify any requirement for reasonable adjustments to the recruitment process. That is essential, as the duty to make such adjustments is fundamental to opening up opportunities for disabled people to gain employment. How can they be made if nobody knows that they are needed? Secondly, an employer can make inquiries for the purpose of monitoring diversity in the range of people making job applications. We were told by stakeholders that that monitoring is important to encourage diversity and improve job prospects for disabled people. Thirdly, the new clause provides for inquiries that facilitate the delivery of positive action for disabled people. We all agreed in Committee that that is an important tool in improving work opportunities for disabled people. Finally, an employer will be able to make inquiries where there is a genuine occupational requirement for the job on offer to be filled by a disabled person or a person with a particular disability. In such cases, it will be important for the employer to be able to identify candidates with the required disability at an early stage. In addition, the new clause provides for an exception for health-related questions asked for the purpose of national security vetting. In other cases, an employer will reduce the risk of a penalty if health-related inquiries are delayed until after the applicant has passed some form of assessment or interview based on non-health criteria. If there is no form of assessment, the employer will be able to make health-related inquiries when they have decided to make a job offer. The aim 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 that they have the skills and competencies for the job on offer. That will address one of the key concerns of disability organisations—that disabled people are being screened out without ever getting to the interview or selection stage. We will do all that we can to ensure that the new provision is well known, so that it can overcome the deterrent effect that health-related inquiries made at the initial application stage can have on disabled people's willingness to apply for work. At the same time, it will promote opportunities for disabled people in the labour market by facilitating positive action and recruitment where there is a genuine occupational requirement. The new clause will be an appropriate deterrent to employers using the inquiries in question to gain information for discriminatory purposes, and it will ensure that employment opportunities are promoted, for example though reasonable adjustments. I seek the approval of the House for the new clause.