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Equality Act 2010: pre-employment questionnaires and contractual secrecy pay clauses

On 1 October 2010, the main provisions of the Equality Act 2010 came into force. In this, the second of a series of articles considering the key changes affecting employers, we focus on restrictions relating to the use of pre-employment questionnaires and contractual secrecy pay clauses.

Pre-employment questionnaires

It is a rare organisation that has not been affected by illness and its cost to employers can be notable. Pre-employment health questionnaires have long been used by some to filter out job applicants who have previously taken long periods of sick leave or have had particular health problems. Since the Disability Discrimination Act 1995, this approach has proved dangerous for the unwary (especially those unwilling to make ‘reasonable adjustments’ to deal with what they found). They are now saved from themselves, however as, with few exceptions, the Equality Act actually prohibits employers from asking applicants about their disability, health or sickness absence prior to their being offered a job (or being included in a pool of successful candidates to be offered a job when a position becomes available).

The Equality and Human Rights Commission’s (EHRC) Code of Practice on Employment explains that this was designed to ensure that disabled applicants are assessed objectively for their ability to do the job in question, and that they are not rejected because of a disability.  However, the Act does recognise that there are certain limited circumstances where an employer may need to ask questions about an applicant’s health where such questions are necessary for the purpose of:

  • Establishing suitability or adjustments – this exemption covers questions considering whether an applicant would be able to complete an interview or selection process or if any reasonable adjustments will be required in order for them to do so, for example, in recruiting for an outdoor activity centre, an employer wants to hold a practical test for applicants and needs to ask about their health to ensure those who cannot do the test (for example, due to pregnancy or injury) are not required to do so.
  • Establishing ability to perform intrinsic functions – this allows for questions to be asked in order to establish if an applicant will be able to carry out a crucial or fundamental part of the work concerned, for example, to determine if an applicant is able to carry out lifting and handling of heavy items where this is required for a job in a warehouse. Please note, however, that if a disability is established, the employer will still be under a duty to apply any reasonable adjustments before assessing whether the function is intrinsic or not.
  • Diversity monitoring – in this case answers to diversity questions should be kept separate from an individual’s application form and not available to those short-listing and approving candidates for the work concerned.
  • Permitted positive action – in order to facilitate employers taking proportionate measures to train or encourage under-represented groups to apply for jobs  – for example, as part of a guaranteed interview scheme.
  • Where a disability is required for the role – where this is an occupational requirement capable of objective justification for example, where recruiting a deaf, blind project worker with personal experience of deaf blindness. 

It should be noted that questions would only be allowed where ‘necessary’ for any of the permitted reasons listed above.  There is no detailed guidance on what necessity means, so it is likely that this will be a hot topic of litigation in this area.

Employers will also need to be careful in the phrasing of any pre-employment questions, and should focus only on the existing health and capabilities of an applicant. Although an assessment of someone’s present ability to lift and handle heavy objects might be essential to consider their suitability to perform a role requiring this kind of work, an employer may not, for example, be able to justify broader questions about their past health or abilities.

Contractual secrecy pay clauses

For many, discussing their pay with colleagues is taboo, but to underline this some organisations have a contractual provision preventing such discussions. This is thought to impede the progress of equality of pay in the workplace and consequently the last Government placed such clauses under the spotlight. 

The Act does not impose an outright ban on pay secrecy clauses (that is, terms of employment seeking to prevent individuals from discussing or disclosing their pay to colleagues), but it does make such terms unenforceable in relation to a person making or seeking a ‘relevant pay disclosure’ in discussions with a colleague or trade union representative.

The intention behind these provisions is to promote pay transparency in the workplace and to enable employees to have discussions with colleagues or trade union representatives with a view to identifying unlawful pay discrimination.

A ‘relevant pay disclosure’ is defined as ‘… a disclosure made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, ..... a connection between pay and having (or not having) a particular protected characteristic’. To be protected the disclosure must therefore be sought or made for the purpose of finding out any pay differences that are related to a particular protected characteristic, such as gender – rather than just curiosity.

The Act also makes it unlawful to victimise (or treat less favourably) an individual for making or seeking a ‘relevant pay disclosure’. This would, for example, stop an employer from taking disciplinary action against a man for disclosing the level of his salary to a woman who believes herself to be underpaid in comparison with him.

In many cases, discussions about remuneration may not have occurred when an employee has in the back of their mind the possibility of discrimination against them and such thoughts may only in fact be triggered once information about a colleague’s pay has come to light. Evidentially, it will be extremely difficult to prove what was in the mind of an individual when they asked or responded to a query about their pay and further guidance is likely to be required through litigation about whether or not an individual is entitled to protection under the Act. Sadly this is good news for employment lawyers and bad news for employers.

In our next article we look ahead to the provisions that are in the Act but which have yet to be activated. In many ways these are the most interesting and far-reaching provisions. Whether they should remain ‘not in force’ remains a topic of debate.

Darren Clayton is a partner at Doyle Clayton Employment Solicitors