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Reasonable Adjustments 

The Equality Act 2010 requires employers to make reasonable adjustments in relation to the following areas to avoid placing a disabled person at a substantial disadvantage in comparison with those who are not disabled, through a particular provision, criterion or practice (for example, a requirement in relation to the timing and location of interview, or a physical feature of their premises).

The EHRC Code recommends asking candidates before interview if they need any reasonable adjustments (for example, in the application form or the letter inviting them for interview) and on the day of the interview, whether any adjustments are necessary.

Employers should ensure they consider anything in the arrangements for, or conduct of, the interview process that could please disabled candidates at a substantial disadvantage. Some common examples of actions to take as a result could include:

  • moving the interview to a location with easier access where the chosen location requires the use of stairs and there is no lift or ramp for wheelchair use
  • rescheduling the time of the interview where a disabled candidate relies on assisted transport
  • allowing a deaf candidate to be accompanied by a sign language interpreter
  • arranging for blind candidates to be met on arrival and escorted to the interview.

The need to make adjustments applies to all aspects of the selection process. For example, if there is an on-line test, this should be in a format which a candidate with a visual impairment can access or it should be modified appropriately to help the candidate undertake it.

The EHRC Code suggests that the practical effect of the duty to make reasonable adjustments may be different if a candidate with a disability arrives for interview, and is substantially disadvantaged by the arrangements, but the employer did not know about, or could not have reasonably known about, the disability. The employer still has a duty to make reasonable adjustments from the time it first learns of the disability and disadvantage. However, the extent of the duty will be less. However, if an employer’s processes make the right enquiries, there should be few circumstances where such a situation will arise. In any event, it is advisable for employers to consider what adjustments can be made.

Candidates with a disability

Disabled candidates are protected by special provisions in the Equality Act 2010 to avoid them being unfairly screened out from the recruitment process. Section 60 of the Act makes it unlawful to ask job candidates about their health; this can cover questions at interview, in the application form or in reference requests.

There are some specific exceptions to this. Employers are allowed to ask questions about disability for equality monitoring, to enable adjustments to be made during the selection process, or where a specific aspect of health or capability may be relevant because of an essential requirement in the job (this allows employers to confirm the individual’s ability to carry out a part of the job which is either a core part, or something fundamental or essential to the job role).

Unless the question is being asked for one of these specific reasons, asking it shifts the burden of proof to the employer and an unsuccessful, disabled job candidate will be able to bring a disability discrimination claim which an employer will lose unless it can demonstrate that it did not take the decision based on the health question or discussion, or one of the specific statutory exceptions contained in section 60 applied.

This provision does not prevent an employer from asking health questions altogether – it just restricts the timing of such enquiries so that, in effect, they can only be raised after an offer of employment has been made (this means an employer acting lawfully would make a job offer subject to satisfactory health assessments/confirmation of fitness to work).

There is one further exception to the circumstances in which a health question can be asked of candidates. This is where an employer is taking a positive approach to encouraging disabled candidates (which can be demonstrated by using the ‘two ticks’ symbol in job ads). It is permissible to ask a candidate to confirm whether they are disabled if an employer can show this is in order to provide a guaranteed interview or shortlisting, where the candidate meets the minimum criteria for the job.

Preparing for the interview

In advance of the interview to ensure that the time spent with candidates is used most effectively.

The interviewer should:

  • read the application form or CV, job description and person specification
  • identify any particular matters that require clarification, for example if the application contains any inconsistencies or missing information
  • prepare a list of relevant job-related questions
  • ensure that any intended questions do not discriminate and could not reasonably be interpreted as being discriminatory.

As the interview is also an opportunity for the candidate to find out more information about the job and the organisation, the employer will wish to ensure that the interview experience portrays the employer positively.

The interviewer should:

  • try to anticipate additional questions that the candidate may ask about the job or the organisation and prepare relevant answers
  • ensure that the interview area facilitates discussion and is free from interruptions and distractions
  • ensure that the chosen venue is suitable, tidy, accessible, well lit, at a comfortable temperature and has comfortable seating.

Conducting theh interview

All interviews must be conducted fairly. This means candidates should be treated consistently where possible, with the exception of disabled candidates who may require special arrangements that an employer is required to provide where this is reasonable (see ‘Reasonable adjustments’ above).

By adopting a structured, objective and unbiased approach at interview, employers are better placed to ensure that the interview process is conducted fairly, is free from discrimination and is effective in identifying the best candidate for the role.

The EHRC Code recommends conducting interviews strictly on the basis of the:

  • application form
  • job description
  • person specification
  • key criteria or competencies/skills
  • agreed weight to be given to each criterion
  • results of any selection tests.

By adopting a structured approach, employers are in a better position to assess all applicants objectively, and solely on their ability to perform the job satisfactorily. A well-planned and structured approach will enable interviewers to:

  • ask the same key questions of candidates
  • ensure consistency and fairness in the process, for example where large numbers of candidates are being interviewed by different people
  • identify relevant questions that are specific to the candidate
  • ensure they have obtained the necessary information to assess the suitability of the candidate.

The following structure may be helpful at interview:

  • introduce those present
  • ensure the questions are based on real requirements for the job and are relevant to enable the employer to make appropriate selection decisions
  • ensure that the candidate is familiar with the role they are being considered for
  • make accurate notes on the relevant points
  • keep to the scheduled timescale
  • allow sufficient time for candidates to ask any questions
  • explain the next stage and when candidates should expect to hear from the organisation.

Avoiding discriminatory questions

The interview is often a pivotal stage in the selection process. The opinions and conclusions of the interviewer will form a key basis for selection decisions.

The interview is also a key stage at which subjective judgments may be made, consciously or unconsciously, based on instant impressions or matters that are discussed.

To help ensure fairness and consistency in the interview and process, it is important that interviewers only ask questions about, and only take account of, information that is relevant to the job.

Questions may be discriminatory if they:

  • indicate an intention to discriminate on the grounds of any of the protected characteristics (for example, indicating that a job will not be suitable for candidates with childcare arrangements)
  • imply a biased view of the interviewer in respect of any of the protected characteristics (for example, asks an older candidate how they would “fit in” in a younger team)
  • put the candidate at a disadvantage because of a protected characteristic
  • are derogatory in relation to any of the protected characteristics (for example, a comment made about a female candidate’s family commitments could be construed as sex discrimination).

Asking questions about childcare and family

These types of question are often best avoided due to the potential to discriminate against women. However, asking questions about childcare arrangements and family matters may be justified in some cases if the questions relate to the capacity of a candidate to fulfill the particular job. Asking the question in itself may not be discriminatory. What is important is to ask the question in a neutral way, to all candidates and make clear it relates to the job requirements.

For example, asking only female applicants whether they can work shifts, or asking a female candidate if their child care responsibilities would interfere with shift working, would be discriminatory and demonstrate bias as assumptions are being made about female candidates.

By contrast, explaining that the job will require shift working (and outlining the shift pattern) and then asking the candidate whether that creates any difficulties would be more neutral, objective and fairer.

The key consideration will be whether the question is evidence of an actual or intended discriminatory approach or attitude by the employer, for example, where it indicates that an employer believes a candidate will have difficulty in holding down the particular job because she has children. (Corus Hotels v Woodward [2006]) [BAILII].

Interviewers must ensure they avoid making subjective or stereotypical assumptions about the capabilities or characteristics of candidates. This may otherwise lead to discrimination in the interview and selection process.

Questions about health

The Equality Act 2010 makes it generally unlawful for employers to ask questions about the health before a job offer is made. Where the employer is not currently in a position to make an offer, it will also be unlawful to ask health-related questions before including the candidate in the pool of candidates from which the employer will make a selection.

Health-related questions can be wider than just asking about whether the candidate is in good health and would extend to asking disabled candidates details about their disability (as opposed to adjustments which might need to be considered) or exploring a career gap resulting from a health condition.

The Equality Act provides a list of permitted reasons for asking health questions. These include asking questions in order to:

  • establish whether the candidate can comply with a requirement to undergo an assessment or interview
  • establish whether the employer has a duty to make reasonable adjustments for the candidate
  • explore candidates’ ability to undertake any part of the role which is intrinsic to the job (see below)
  • monitor diversity in the range of persons applying for work
  • take permitted positive action
  • establish whether the applicant has a particular disability if there is an occupational requirement for the person performing the work to have that disability.