Fair recruitment: are you hiring in line with the Equality Act?

The Equality Act was introduced in England, Scotland and Wales in 2010 as an update to the Disability Discrimination Act 1995, which now only affects Northern Ireland.

These changes now protect employees beyond the scope of disabilities such as mobility impairments or blindness, and account for personal characteristics such as age, race and gender. By law, employees have a right to fair and equal treatment in the workplace – starting from the hire itself.

What the Equality Act 2010 says

When thinking about hiring in line with the Equality Act, we must consider what counts as a disability. The act defines disability as:

“A physical or mental impairment where the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.”

This has great implications for both workplace treatment of staff, and recruitment itself.

Best practices for hiring to prevent disability discrimination

Employers are generally not allowed to ask questions about health or disability during the recruitment process. Likewise, applicants do not have to disclose a disability.

That said, this isn’t a legal requirement, as some roles may need staff to undertake physical labour. Under UK employment law, employers can ask if applicants have any impediments that could stop them from carrying out the job correctly – for example, heavy lifting.

If an applicant’s mental or physical impairment would have no effect on the job role, then an employer can not turn somebody down based on this.

Other exceptions for asking an applicant about their health

If an employer unfairly asks a question about an applicant’s health, the applicant could have grounds to report this to the Equality and Human Rights Commission. This risks potential reputational or financial damage, so you should always take precautions.

Some exceptions to the rule include:

• Equal opportunities: employers may wish to (confidentially) store information on applicants with disabilities, to make sure they are hiring inclusively.
• Positive action measures: some employers may actively have “positive action measures” in place. These include things like guaranteed interview schemes, where this line of questioning may benefit an applicant.
• If a disability is a key part of the role: some roles may require applicants to have a specific disability, such as a deaf person applying to work with deaf children.

What counts as a disability under the Equality Act 2010?

Strictly speaking, there are four main types of disabilities. Visual impairments and hearing impairments concern those who are blind, deaf or both. The impairment needs to be classed as ‘substantial’, rather than something that can be corrected, such as with glasses or hearing aids.

Motor impairment means a partial or total loss of function in a body part, such as a limb. Finally, cognitive impairment means substantial difficulties with memory, concentration or making decisions.

All of these could affect an applicant’s ability to carry out a job. However, not every kind of physical or mental impairment is covered by the Equality Act. An employee may have grounds to refuse if they are concerned.

Key definitions

The Equality Act uses the terms ‘substantial’ and long-term. By law, a disability would need to be something more than ‘minor’ (such as the need for glasses). This applies to everyday tasks taking much longer than usual, for example, getting dressed.

‘Long-term’ means for a period of 12 months or more. If an employee’s condition is getting worse, it may not immediately be classed as substantial, but it could be classed as ‘progressive’. This would be covered under the Equality Act. Again, an applicant does not have to disclose it, but they may be able to use medical evidence should their employer dismiss them later on.

There are also specific impairments that are automatically treated as a disability:

1. Cancer, including skin growths that must be removed in case they become cancerous
2. Severe sight impediments – certified as blind, partially sighted or severely impaired
3. Multiple sclerosis – valid from the date of diagnosis
4. HIV – also valid from the date of diagnosis
5. Severe, long-term disfigurements such as a skin disease or facial scarring.

What does not count as a disability?

There are certain impairments that are not covered under the Equality Act. These are sometimes trivial, and it’s unlikely they would deter someone from hiring, such as tattoos, piercings or hayfever.

In other cases, they may be a cause for concern. An applicant may disclose a tendency for:

• Exhibitionism or voyeurism
• Pyromania (setting fire to things)
• Theft

These could all present a case against hiring them. It is the employer’s duty to protect their staff, and they may be able to reject an application on this basis.

Likewise, addiction to substances or alcohol is not classed as a disability. However, if an employee then suffered an impairment, such as depression from alcoholism, this could be considered a disability.

What about mental disabilities?

It’s common to think of disabilities as those that we can see, such as wheelchair use or sensory impairments. However, one in five disabilities is invisible, such as autism, Crohn’s disease or epilepsy. Again, if an employer has reason to believe these might affect someone’s ability to work, they could have grounds to ask.

But beyond physical impairments, many mental conditions could be classed as a disability. Again, we refer to the definition: “a substantial or long-term effect on his/her ability to carry out day-to-day activities”.

Some examples include depression, which may not be long-term, but could be substantial and recurring. Likewise, conditions like agoraphobia may prevent an applicant from going outside, or Asperger’s Syndrome may cause severe anxiety.

Keeping your employees safe

It’s important to remember that applicants do not have to disclose their ability, and recruiters can only ask on certain grounds. It’s also essential to provide a safe and accessible workplace. This may include making changes such as:

• Amending recruitment processes or job descriptions
• Changing processes, for example, allowing somebody with social anxiety their own desk rather than hotdesking
• Making changes to the workplace such as disability ramps and handles
• Changing equipment to support those with conditions such as arthritis
• Training staff in best practices.

Discrimination law is tricky to navigate and needs to work in the interests of the staff and the company. For more help with your recruitment processes, contact Altum HR.