Application forms, medical examinations and other matters relating to pre-employment are full of hidden pitfalls, especially when connected with discrimination. It is no surprise, then, that the IPD’s legal helpline receives frequent calls about such issues.
Under the Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976, it is unlawful to discriminate against job applicants on the grounds of sex or race. This applies not only to the choice of candidate, but also to the terms attached to the job offer. There are exceptions to this rule where being of a particular racial group or sex is necessary to the job concerned. This is called a “genuine occupational qualification”.
We recently received a call from a company advertising for a warden to work in a home for women who had suffered abuse. We told the company that it could use the “genuine occupational qualification” exception, because being female was a necessary requirement for the job and the role fell into the category dealing with the personal welfare of individuals specified under section 7 of the SDA. An employer must be able to satisfy a tribunal that a job falls within one of the specified categories.
The Disability Discrimination Act 1995 (DDA) does not contain the same prohibitions, but a job advertisement could still be used by a claimant to demonstrate that an employer operated a discriminatory policy. We advise all helpline callers to state in job advertisements that applications are welcomed from disabled people, and to avoid comments or statements that may be potentially discriminatory.
Employers are also often concerned about the legality of their application forms. This issue has been heightened by the DDA, particularly in relation to pre-employment medical questionnaires. We advise employers that it is reasonable to ask whether someone has a disability, but that the question should be qualified with an explanation of why it is being asked. This should be for the purpose of finding out whether any adjustments need to be made in order to allow the applicant to carry out the role and, again, it should be backed up with a statement that applications are welcomed from disabled applicants.
Some organisations require all job applicants to undergo a medical examination. Pre-employment medicals are not in themselves discriminatory, but they can be if disabled candidates are singled out from other applicants without justification. Similarly, employers should be careful to avoid sex, race and disability discrimination when dealing with application forms. For example, we advised one recent caller that his company’s requirement that applications should be handwritten could be discriminatory unless it could be shown that handwriting was a qualification for the job. The advertisement in question was for a kitchen assistant and the ability to read or write was not a central requirement for the post. If applicants were rejected as a result of their inability to fulfil this requirement – for example, because they were from an ethnic minority or were disabled – this could be discriminatory.
We are also frequently asked by callers whether an employer can refuse to employ an applicant on the grounds that they have a criminal conviction. This is entirely up to the employer. The Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 deals with convictions that are spent but which must still be disclosed when the person is applying for a job that falls within a category specified by the act.
Occupational groups requiring disclosure include teachers, solicitors and social workers. Before employment commences it is possible for an employer to reject an applicant whether the conviction is spent or not. There is no specific remedy in the act that job applicants may use if they have been rejected on the basis of a criminal conviction.
In one recent call, an employer said it had asked candidates on its application form whether they smoked cannabis. When one applicant admitted that he did, the employer asked the legal helpline whether it could still employ him.
Although there are criminal issues involved, we advised that from an employment law viewpoint, it was entirely the company’s decision whether or not to employ the candidate, subject to health and safety considerations. But this example does beg the question as to why an employer would ask a question if it did not know how to react to the answer.
The employment of foreign workers is also an issue that crops up regularly. Under the Asylum and Immigration Act 1997 it is a criminal offence to employ a person who is not entitled to work in the UK, carrying a potential fine of £5,000. Employers have a statutory defence if they have checked that the potential employee has one of a range of documents verifying their right to work.
Other matters to consider in connection with this area are the new rules relating to the retention of data such as ethnic origin, health and criminal offences and convictions (see “Information overlord”, Law at work, 17 September). As with any other area of employment law, employers should always seek legal advice if they are unsure about how to proceed on recruitment issues rather than risking a claim.
Judith Howlings is legal adviser to the IPD’s helpline (0990 561251), run by employment law specialists Hammond Suddards
Callers to the IPD’s legal helpline regularly ask about giving references for employees. Unless specified contractually, employers are not obliged to give references, but if they are supplied, they must be true and accurate or the referee may be open to a charge of negligence.
As long as a job offer is made subject to the receipt of satisfactory references, an employer may withdraw an offer if the references are not satisfactory. An employer should avoid disclosing the contents of a poor reference to an employee in order to protect the confidentiality of the referee.