All You Need is Love: - a Timely Reminder; Discrimination is Alive
Although Recruiters and Recruitment Agencies are well versed in the perils and pitfalls of potential situations where there is a risk of potential discrimination claims, following the abolition of employment tribunal fees in mid-2017, there has been a steep rise in disability discrimination claims. The latest Ministry of Justice tribunal statistics discloses disability discrimination claims have increased 26% to 6,919 claims in the 12 months to April 2019, compared with 5,477 for the previous year. A further 3,657 claims have been submitted in the six months to September 2019.
This article is intended as a timely reminder, amongst the noise of IR35, not to overlook or rely on processes and procedures drafted some time ago without checking they are still fit for purpose, in ensuring all forms of discrimination are avoided.
The Law: - definition of disability and potential claims
The Equality Act 2010 defines Disability as “a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities”. An impairment is considered long-term if it has lasted (or is likely to last) at least 12 months.
A claim of disability discrimination may occur if an individual considers they have been treated a certain way “because of their disability or because of something arising in consequence of their disability”.
Recruitment processes are a potential minefield. Indirect discrimination claims, although not common in this context, are a real concern. In the case of Government Legal Service v Brookes (2017), a claim made before the abolition of fees involved an applicant suffering from Asperger Syndrome, who asked that an adjustment be made to one of a series of tests; rather than multiple-choice she be allowed to answer in written format, as otherwise, she was at a disadvantage due to the nature of her Asperger’s. Both the Tribunal and Appeal Tribunal found the claimant had been subject to a disability as a consequence of her disability, and the failure to change the means of conducting the test was a failure to make reasonable adjustments.
Recruiters and Agencies should be aware of client’s recruitment policies and make sure that clients are prepared to be flexible and adjust for employees with disabilities who require changes as a result of their disability. If a candidate explains they may struggle with a part of the process, potential employers would be well advised to show flexibility and willingness to adapt to ensure as far as possible a level playing field. Otherwise, the Recruiter, individually and or the Agency might find themselves in the Employment Tribunal facing claims of indirect discrimination as a consequence of helping a client apply a practice which discriminates against a disabled candidate A claim can also be made if an agency or employer discriminates against a candidate, disabled or not. For example, by following a client’s instruction to not consider any application from a candidate with a protected characteristic.
Although compensation may be limited in recruitment-related claims to the individual’s loss of opportunity, “there is no cap on the amount of compensation” that a tribunal can award for disability discrimination.
What steps can you take to minimise the risk of claims?
While a complex area, some useful steps to take to raise awareness and help avoid claims include:
- Implementing your own Equal Opportunities Policy and training all staff in your organisation about equality and the legal protections which exist against discrimination;
- Making sure you are aware of your client’s equality policy (and other relevant policies) and making sure you have copies of the job descriptions and person specifications for the posts you are helping them to fill;
- Being careful not to follow your client’s instructions which may be considered discriminatory;
- Encouraging an open dialogue with applicants regarding physical and mental health to understand whether there are any reasonable adjustments which can be made; and
- Making reasonable adjustments for disabled applicants where necessary; for example, by providing job information in a different format (large print, braille etc.) or offering a change of location for the interview.
- Care over the wording of advertisements.
- Review automated recruitment.
- Look out for subconscious bias.
Bear in mind at all times “there is nothing you can do that can’t be done.”
Rhona M. Wark - Consultant
for BTO Solicitors LLP
T: 44 (0)141 221 8012
Rhona Wark is a Consultant within the Employment Team at BTO Solicitors LLP.