Examples of Section 60 breaches and compliance
Here are some Q&A examples that illustrate how Section 60 is intended to work in practice across the employer – employee relationship.
Question: An employer’s standard job application form for all jobs contains a section requiring job applicants to reveal information about any health issues and the number of days they have had off because of ill health in the last two years. Is this lawful?
Answer: This section of the form is in breach of Section 60 because the questions clearly relate to health (and possibly disability) and this general health information is not necessary under one of the defined exceptions.
Question: A recruitment agency acting for a large employer has been asked to select a pool of candidates who can do a range of jobs for them at short notice. The agency draws up a shortlist partly based on information that it requests from referees some of which relates to health and disability
(e.g. sickness absence figures). Is this lawful?
Answer: There is a breach of Section 60. This is because the agency, acting on behalf of the employer, has requested information about health and disability to determine who should be shortlisted. It would be good practice for employers to instruct agencies not to ask questions about health or disability when carrying out an exercise of this nature unless they are allowed to do so under one of the exceptions.
Question: When recruiting scaffolders, a construction company asks applicants whether they have a disability or health condition that affects their ability to climb ladders. Is this lawful?
Answer: As the ability to climb ladders and scaffolding is an intrinsic function of the job, the construction company is not in breach of Section 60.
Question: A telesales company wishes to achieve greater diversity in its workforce to reflect the consumers it provides services to. Various groups are under-represented, including disabled people. In its recruitment materials it asks disabled candidates to identify themselves so that they can benefit from the company’s guaranteed interview scheme for disabled candidates. Is this lawful?
Answer: Asking health- or disability-related questions for this legitimate purpose – promoting lawful positive action – is not in breach of Section 60.
Question: A charity wishes to recruit a Deafblind project worker who has personal experience of Deaf blindness. This is an occupational requirement of the job and the job advert states that this is the case. In the application form the employer asks for evidence that applicants meet this requirement. Is this lawful?
Answer: It is lawful because being Deafblind is an occupational requirement of the job.
Question: The monitoring forms containing health- and disability-related information that a large public sector employer uses have not been separated from the rest of the job application forms. Consequently, the panel making shortlisting decisions uses the information it has been given about health and disability to sift out candidates that in its view are not up to the job. Is this lawful?
Answer: It is a breach of Section 60 to ask for information about health and disability in order to shortlist candidates during a recruitment process. If the information is legitimately sought for monitoring purposes, it should be kept separate from the application form and should not be seen by the interview panel.
Question: A small employer is unable to separate monitoring information about disability in job application forms because she personally handles the whole recruitment process. However, she takes care to disregard this information in respect of shortlisting and selection. Is this lawful?
Answer: Provided that she disregards information about disabilities (for anything other than monitoring purposes) and considers each job applicant’s ability to do the job without reference to disability, then this is compliant with Section 60.
Bernadette Bruckner is a partner at MSBHelp.com – the online counselling, training and education portal for employers – supporting mental health in the workplace.