Disability and recruitment

Anne Palmer looks at a recent case concerning whether a prospective employer knew about the disability of a job applicant - and Anne also provides some practical tips on the tricky question of handling recruitment and disability issues.

The recent case of Patel v Lloyds Pharmacy Limited, handed down this month by the Employment Appeal Tribunal (EAT) provides a reminder of some of the tricky disability issues that HR face when it comes to recruitment.

In this case, the Claimant, Mr Patel, attempted to bring a direct disability discrimination claim against Lloyds Pharmacy Limited (Lloyds) on the ground that he had been rejected for a job because of his bipolar disorder. 

The success of this type of claim depends on whether the employer knew of the disability at the relevant time, as the disability must form part of the employer’s "conscious or subconscious reason" for the discrimination (section 13 Equality Act 2010). It was clear from the evidence put before the tribunal that the interviewer for Lloyds did not know about Mr Patel’s disability when he decided to reject Mr Patel for the role for which he had applied. 

• Mr Patel had completed an Equal Opportunities Monitoring form on which he had disclosed that he had ‘Bipolar Disorder Type 2’, but this had been kept separate from his application and had not been seen by the interviewer.
• A manager who had previously engaged Mr Patel as a locum pharmacist for Lloyds gave informal feedback about Mr Patel, suggesting that he should not be employed because he was often late and aggressive towards staff and customers.  He did not, however, mention Mr Patel’s bipolar disorder.
• No mention was made of Mr Patel’s disorder during the interview, either by the interviewer or Mr Patel.
• Mr Patel scored very low on Lloyd’s standard scoring system – lower than the minimum required even for a trainee role - and his application was consequently rejected.
• Informal feedback was given to Mr Patel following his interview but, again, there was no mention of Mr Patel’s disorder.

Accordingly, an Employment Tribunal struck out Mr Patel’s claim on the basis that it had no reasonable prospect of success, and that decision was upheld by the EAT.  The EAT said that

• on the evidence available, there was no indication that Mr Patel’s treatment was because of his disorder; and
• the EAT was unconvinced by the argument that the claim should proceed because ‘something might turn up’ further down the line – for example, in documentation produced in disclosure or in evidence from a witness who crumbled under cross examination. 

So, a collective sigh of relief from HR professionals at the news that apparently weak claims are unlikely to be allowed to continue just in case something untoward may come to light at a later stage.

Practical points

It is reassuring that the EAT took this approach, and this case also highlights the importance of knowledge of disability, or possible disability, when recruiting.  What are the key practical considerations to bear in mind?

• As opposed to direct discrimination (as in the case above), in claims for discrimination arising out of disability, or failure to make reasonable adjustments for a disabled person, the respondent can only be liable if it knew of the disability or could reasonably be expected to know of it (section 15(2) and paragraph 20, Schedule 8, of the Equality Act 2010). Furthermore, the Equality & Human Rights Commission’s Code of Practice sets out that 'an employer must do all they can reasonably be expected to do to find out if a worker has a disability' (paragraph 5.15).  Therefore, employers should take reasonable steps, and have systems in place, to enable them to find out the relevant information – for example, asking what adjustments an applicant might need to have made for an interview, with any answer to that question being automatically diverted away from the person making the recruitment decision.
• To what extent is an employer or prospective employer ‘reasonably expected’ to know about a disability?  This is not an easy question to answer - especially when employees / prospective employees themselves may not want to be entirely open about their circumstances – but some practical tips are
• • employers will be expected to pick up on ‘warning signs’ – such as a prospective employee asking about disabled access, or asking you to complete paperwork relating to disability benefits
  • employers are usually entitled to rely on advice from occupational health as to whether an individual is disabled
  • additional help may be expected from individuals who suffer from rare conditions, regarding the type of help that a prospective employer might provide during recruitment.
    
• Remember that if an employer's agent or employee (such as an occupational health adviser, an HR officer or a recruitment agent) acting on behalf of an employer knows, in that capacity, of an applicant's or potential applicant's disability, that knowledge will be ‘fixed’ on the employer, who will not usually be able to claim that they do not know of the disability – even if the agent has failed to pass on information to the employer. The ECHR therefore recommends that employers ensure that, where information about disabled people may come through different channels, there is a confidential way in which that information can be gathered together. 
• An important practical point is that an employer may make enquiries about disability, but the  person of whom they are making enquiries may not consider themselves to be disabled.  How should you proceed in those circumstances?  The ECHR Code suggests that enquiries may be made, but employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially (paragraph 5.14).
• This brings us to the knotty question of making pre-employment enquires about disability / health issues.  Under section 60 of the Equality Act, it is unlawful (other than in very limited circumstances) to ask about an employee’s health before an offer of employment is made.  This is, presumably, why the Health Questionnaire, in the Patel case was kept confidential and was not disclosed to the manager who interviewed Mr Patel.  However, questions about health may be asked once an unconditional offer is made, or an offer may be made conditional on satisfactory completion of a health questionnaire.  There are still, however, traps for the unwary here: even questions asked at this stage must be
• • relevant to the job in question, and
  • reasonable adjustments must be considered.

The points set out above may assist with avoiding disability claims arising out of a recruitment process, but these are cases on which it is always difficult to provide general guidance as they will vary on the facts of the individual circumstances.  The Bevan Brittan employment team does, however, have a wealth of experience in advising on these issues, so please do get in touch if you require assistance, advice or training.