Equality Bill

My Lords, we now turn to the much discussed provisions regarding pre-employment inquiries and their place within the recruitment process. As the Minister will know, we on these Benches believe that employers should not be permitted to make use of pre-employment health-related questions which are not directly relevant to the candidate’s ability, in particular for the job for which they have applied. We were therefore delighted that, in another place, the Solicitor-General took on board the concerns that we had in this respect and stated that, ""I am engaged with the issue and am impressed by the arguments".—[Official Report, Commons, Equality Bill Committee, 18/6/09; col. 374.]" That is language that I would love to hear much more from the Government in this place. Nevertheless, we were disappointed with the new clause which the Government brought forward in response to our worries. For this reason, we have retabled some of the amendments which were discussed in another place. Amendments 65 and 66 would mean that an employment service-provider would not be able to ask any questions about health or disabilities as they would apply to arrangements made about the provision of the service, except as it was necessary to make reasonable adjustments to the selection process. Amendments 66 and 67 would apply the same proviso to the clauses dealing with trade organisations. We have also tabled an amendment to remove Clause 60, which, as I have mentioned, the Government inserted on Report in another place, because it does not go far enough. Further to this, we have tabled alternative Amendments 69 and 136A, which cover the issues more adequately and which I hope mean that we will now have a debate during which we find a solution that is more acceptable to all concerned. Clause 60 goes some way towards addressing our concerns regarding pre-employment questions around health or disability. We are very grateful for the efforts made in drafting the new clause. As the Explanatory Notes state: ""This provision will deter employers from asking questions and therefore opportunities for direct discrimination in recruitment"." It will do this by making it easier for an applicant with a disability to take their case to a tribunal if they feel that they have been discriminated against in the application process. The inquiries, however, are not strictly prohibited. I think I am right in saying that it is hoped that easier access to a tribunal, where the case can be made on the very existence of a pre-employment questionnaire and where the burden of proof is on the employer, would act as a strong enough disincentive to employers. However, the crucial issue here is not just to make the tribunal process easier but to make it much more difficult for employers to ask health or disability-related questions in the first place, before a job offer is made. This is why the Disability Charities Consortium has stated that while they, ""welcome the Government’s efforts to restrict the use of disability-related questions"," the provision needs much, ""strengthening in order to act as an effective deterrent"." Mind, the National Aids Trust, Rethink, the Royal College of Psychiatrists and the Terrence Higgins Trust have also made it clear that they, ""regret that the new clause does not go as far as prohibiting pre-employment inquiries altogether"." There are many reasons to bemoan the Government’s new clause, which, while it is a welcome movement on the issue, addresses the issues only in a limited fashion. The Disability Charities Consortium has pointed out that it would take a very confident person with a disability to claim that they knew that the only reason for which they had not been selected for the job was their disability. I am sure that we have all in our time experienced the dejected feeling which comes from being rejected for a job for which we have applied. Would most around this Chamber acknowledge that that gives a pretty severe knock to one’s confidence? In this position, there is a great risk that a disabled person, or a person with a mental health issue or HIV, may not have the confidence or may even feel that it would be arrogant to claim that the only reason for which they did not get the job was discrimination. Furthermore, I am aware that there is considerable stress involved in taking a case to tribunal, in particular where it has to be acknowledged that it will be very difficult to prove the case conclusively one way or the other. The Disability Charities Consortium recognises the merits of the shift of the burden of proof so that employers must demonstrate that they did not use the question to discriminate. Nevertheless, the person with disability still has to take the case to court, and questions about disability in relation to employment are not as clear cut as those about, for example, marital status. The latter are easily defined as discrimination, but the former could be counted as having some relevance for the job. We are therefore entering a very tricky area and we do not think that the Government have come far enough forward on it. I wait to hear from the noble Baroness on this point. There is the further difficulty that at least part of the problem is to do with the fact that if people with a disability know that questions may be asked, they might be put off applying for a job in the first place. Part of the problem, therefore, is not addressing cases which have arisen but the general perception held by many people with a disability—or to go further than our amendment, people with HIV or a mental health problem—that they will be severely disadvantaged in the job market if they are questioned about this issue. A recent Rethink survey of more than 3,000 mental health service users showed that half of respondents felt that they had to hide their mental health problems, and that as many as 41 per cent were put off even applying for jobs because of the fear of discrimination by employers. This evidence is further underlined when one sees that the employment rate for people with mental health illness is just 13.3 per cent. I suppose that this is perhaps not surprising when looked at in conjunction with the survey of employers by the Chartered Institute of Personnel and Development, which showed that more than half of respondents would not even consider recruiting from the "core jobless" group, which includes people with drug or alcohol problems, a criminal record or a history of mental health issues. We therefore need a clear and unequivocal signal that this is not acceptable. As Clause 60 stands, this is not the case. We have therefore tabled Amendment 69, which would go much further by making it much more difficult for employers to use pre-employment questionnaires in relation to disabilities. There would of course be cases where this is necessary; our amendment allows inquiries for the purposes of "reasonable adjustments" for the interview process, an anonymised written question to allow monitoring of disabled people, and for the purposes of positive action. The prohibition will not apply either when a question is necessary to ascertain whether an applicant would be able to perform a specific employment function. Against that background, I look forward to the Government’s response. We have also tabled Amendment 136A in this group, to give enforcing sanctions to the Equality and Human Rights Commission. The sanction would have a wide scope and give the EHRC a power to take action against employers without there being a need for a direct victim, which would allow redress for system breaches of the law. The sanction can therefore be used by the EHRC to send out a clear message to employers about their actions. However, it is also a sanction limited to use by the EHRC only and is not an additional sanction for individuals. It was rightly pointed out in another place that there were no enforcing sanctions to add the weight of the law to our provision. I believe we have remedied this and I hope that is going to encourage a positive response from the Government. We acknowledge that, as it stands, Amendment 69 only addresses questions to do with disability and not health. As we have just been discussing, there is clearly a case for including health questions under the prohibition as well as those relating to disability. This is partly because, as we have seen in previous debates, the definition of disability can cause difficulty for those with mental health issues in particular. Furthermore, there is the issue of clarity, to which I referred earlier. It is difficult to separate a question about disability from a question about health. However, if both were covered, this would give businesses a simple direction and the flexibility to ask the questions that they need to and avoid those which they do not. I say to the noble Baroness, the Chancellor of the Duchy of Lancaster, that I understand that we are going to have our photograph taken together. Excuse me for stressing this, but I am so thrilled that we now have such a senior Member back as chancellor. I am a previous holder of that great title. If I am allowed to digress for a moment, the noble Baroness may discover that she is now about the most senior person. When attending Privy Council she will take precedence over all the people in the Cabinet. If I am allowed to mention this, I remember the noble Lord, Lord Heseltine, standing at the head of the queue, waiting to go in, and I slipped gently in front of him. I shall never forget that. Anyway, I am not supposed to refer to things like that. I mentioned a little earlier that the Government set up a new website, lastminuteamendment.com. At the eleventh hour, and I really do mean that, only yesterday, we were shown that the Government had published amendments that appear to take many of these concerns on board. If that is the case, we are delighted that the Government now at last see the problems with the clause that they inserted into the Bill at Report stage in the Commons. These amendments seem to address our core concerns—they specifically prohibit health-related questions except under prescribed circumstances until a job offer has been made and, also, as our amendments did, they include a strong sanction from the EHRC. We welcome these amendments and their intentions. However, given that they were tabled at the last minute and although I did try to work a 24-hour day yesterday—much to the chagrin of my family—I have not had the opportunity to go through them in minute detail. We are going to accept these amendments for now, as we believe that they go a very long way to meeting our concerns. However, I hope that the Minister will accept that there may be outstanding issues in them which will require further scrutiny at a later date. In responding to these amendments, can the Government say whether there are any other outstanding issues that they are still considering and whether we can expect further amendments? It may be an opportunity, as I so rudely referred to the new website lastminuteamendment.com, for us to be given some idea of what further amendments are going to emerge from the Government over the coming days. I beg to move.