Understand the Law
The Equality Act expressly states that you must:
1. Make reasonable adjustments for job applicants.
2. Provide information in an accessible format if possible.
3. Avoid asking questions about an applicant’s health or disability before you make the job offer.
There are some limited exceptions to this final rule, for example, you are permitted to ask questions to find out if:
-
- You need to adjust the interview or selection process.
- The applicant can carry out an intrinsic part of the job e.g. climbing a ladder if you’re recruiting scaffolders.
7 Tips to Comply with Your Obligations
1. Only include requirements in your advert that are essential for the job: for example, having a driving licence would be a genuine requirement for a job as delivery driver. However, if the position involves only occasional travel that could be done by public transport, you shouldn’t require applicants to have a licence, which could disadvantage some disabled people.
2. Be prepared to provide information in a different format on request: for example, an applicant may ask for your
job advert or application form in large print, Braille or audio. Similarly, you should accept applications in an alternative format, such as via a recording, where reasonable.
3. Consider asking applicants if they need an adjustment to the hiring process: many employers enquire whether candidates need any special arrangements but this isn’t something you have to ask. If you prefer, you can simply wait for the applicant to raise the issue.
Sample Wording: If you want to ask proactively about reasonable adjustments, you should be careful to avoid breaching the ban on health questions. Equality and Human Rights Commission guidance says that using this wording on your application form is lawful: ‘Please contact us if you need the application form in an alternative format or if you need any adjustments for the interview.’
4. Make any requested adjustments to the interview if these are reasonable: for example, it may be reasonable to change the location of your interview to allow wheelchair access or to provide an induction loop for someone with a hearing impairment.
5. Implement reasonable adjustments to any selection tests if requested: for example, you may need to provide a test, or accept answers to it, in a different format for someone with a visual impairment. Or you may need to allow someone with dyslexia extra time to complete the test.
6. Avoid asking candidates unlawful health questions: the ban on asking about a candidate’s health (unless one of the exceptions applies) continues until you’ve made the job offer. This is because the law is designed to encourage you to choose the best applicant based on their skills, without making assumptions about how their health might affect their capabilities. It is therefore unlawful to ask someone about their sickness absence record, ask them to complete a medical form or refer them to an occupational health practitioner before offering them employment.
7. Be wary of withdrawing a conditional job offer: you are permitted to make a job offer conditional on the employee completing a medical check or health questionnaire. However, if they have a condition that may amount to a disability, you should take care. Seek medical advice about the condition and its impact on the person’s ability to do the job, and consider whether any reasonable adjustments would enable them to take up the position. If you withdraw the job offer when there were adjustments you could have made, the person might claim disability discrimination.
Case Law: Adjusting a Selection Test
Last year, the EAT held that an employer should have made reasonable adjustments to a multiple-choice test for a job applicant with Asperger’s Syndrome.
Facts: In The Government Legal Service (GLS) v Brookes [2017] KEAT/0302/16, the GLS turned down Ms Brookes’ request to provide short narrative answers to a test instead of completing it as a multiple choice.
Ruling: The EAT held that the requirement to take and pass the test was a provision, criterion or practice which put people with Asperger’s, and Ms Brookes in particular, at a disadvantage. The test served a legitimate aim (testing applicants’ decision making). However, the GLS’s methods were disproportionate to the aim it was trying to achieve. The multiple-choice test was not the only way to assess candidates’ abilities and the GLS therefore indirectly discriminated against Ms Brookes. It would have been reasonable to make the requested adjustment.
Tip: You do not have to make your recruitment standards lower for a disabled candidate or water down tests. However,
if an applicant requests an adjustment which is practical to implement and does not reduce the assessment’s effectiveness, you should consider making it.