Fairness in the workplace is a vital part of a successful business and UK legislation is clear: all employees and applicants should be considered equally and given the same opportunity. However in these days of increased litigation, how can employers protect themselves while ensuring they offer equal opportunities to all applicants?
One of our employment law consultants has seen an increased number of threatening job applications recently e.g. an applicant may spell out reasons why they cannot follow due process for the application citing the Equality Act – they set out demands regarding interviews and say if they aren’t called for interview then they will take the employer to an employment tribunal. Their demands could include the company paying for travel, overnight accommodation and all meals for them and a paid carer, as well as a laptop and relaxation room so they can prepare for the interview. They go on to specify the format of the interview and say again that they will take the employer to tribunal if all demands are not met.
Our consultant says: “Such an applicant might be genuine but they could be a professional litigant who’s waiting for prospective employers to mess up. Clients who have received applications like these have understandably been extremely concerned; any employers who receive such an application should take care and seek advice before responding.”
It’s up to each individual employee/applicant if they choose to advise employers and/or prospective employers of disabilities – they have the right to do so but it’s not required by law. If an applicant chooses to disclose a disability at the application or interview stage it’s important employers don’t ignore this.
The consultant continues: “While employers should acknowledge the applicants’ disability by making reasonable adjustments to accommodate them they should never, under any circumstances, ask questions about their medical conditions. Even when they are clearly disabled, or where they have chosen to disclose information, don’t ask for more! This includes on the application form, at the interview or by asking them to fill out a medical questionnaire – you should only ever ask an applicant to fill out a medical questionnaire after you have offered the job and the applicant has accepted.
“In cases where an applicant demands that an interview panel is unaware of their disabilities, it can be tricky particularly for smaller companies but, while it’s illegal to use an applicants’ disability as part of the decision making process, it’s not against the law for an interviewer to know an applicant has a disability if that applicant has disclosed this information. Clearly its best practice for them not to know but this isn’t always possible for small companies or senior positions.”
An employer has certain duties to disabled applicants which are as strong and stringent as those they have to their employees, and breaching them has severe consequences. These are:
Direct discrimination – treating a disabled person/applicant less favourably than you treat or would treat a person/applicant without a disability (s.13 of the Equality Act 2010). This includes refusing to offer an applicant an interview due to their disability
Indirect discrimination – having a policy, practice or criterion that puts a disabled person/applicant at a disadvantage compared with a person/applicant without a disability (s.19 of the Equality Act 2010)
Discrimination arising from disability – treating a disabled person/applicant unfavourably because of something arising in consequence of the disability (s.15 of the Equality Act 2010)
Duty to make reasonable adjustments – being flexible with rules, standards, policies, practices or criterion, offering auxiliary aids and making adjustments to physical features (s.20 of the Equality Act 2010). Employers should allow disabled applicants to be flexible with their application e.g. if they are blind you may wish to be flexible in terms of demanding a handwritten application. Reasonable adjustments also apply during the interview process e.g. allowing an applicant to sit down during presentations.
Harassment – subjecting a disabled person/applicant to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment (s.26 of the Equality Act 2010)
Victimisation – subjecting a disabled person/applicant to a detriment as a result of a complaint/supporting a complaint that the employer has breached the Equality Act 2010 (S.27 of the Equality Act 2010)
Employers should always keep these in mind when considering applications.
“It’s important that employers determine what a ‘reasonable’ adjustment is; they should consider what will help the applicant as well as the cost to the employer. Just because an applicant says something is reasonable doesn’t make it so. In the case of an applicant who demanded travel, hotel, food and accompaniment by a paid carer, the employers sought quotes to assess these requests and found the cost was too high. They were therefore entitled not to implement the adjustments as they were not reasonable in the circumstances. Given that the compensation for discrimination is uncapped, and the UK record is £4.5m, it’s vital for employers to take particular care and seek proper legal advice before dismissing an adjustment as unreasonable.”
We recommend employers keep proper records of all communications, in case an applicant does bring a discrimination claim. Records including copies of applications/CV’s, covering letters, emails, letters inviting to interview, correspondence spelling out medical conditions and replies, interview preparation notes, consideration notes for all applicants (to show a comparison), offer letters and rejection letters should all be kept in order to show that due process has been applied throughout.
Our consultant says: “It’s important to remember that disability discrimination is an important issue. It’s important also to appreciate that not all disabled applicants are professional litigants; most are simply looking at advancing their careers. Disabled people are just as capable of contributing to a company as people without disabilities and an applicant’s disability should not be used as a mechanism for rejection. It can be daunting for an employer to receive an application they feel is threatening – if in doubt, seek advice before doing anything. Professional litigants know the law and it’s important that employers do too, particularly small business owners who can find themselves targeted.”
This article was originally published in smallbusiness.co.uk