How we’re stopping unlawful health questions in care sector recruitment
The Equality Act 2010 was a landmark piece of legislation bringing together anti-discrimination law into a single Act and defending people with protected characteristics from discrimination. HIV is considered a disability from the point of diagnosis and therefore is protected under this Act.
Ten years ago, when the introduction of the Equality Act was being debated, NAT campaigned for the act to make it unlawful for employers to ask job applicants about disability and health conditions in advance of a job offer. This is to ensure that employers do not discriminate against applicants on the basis of their health or disability. We were successful and Section 60 states that it is generally unlawful for employers to ask job applicants about their health, unless and until the applicant has been offered a job.
This is especially important when we remember that 10% of people living with HIV are currently unemployed.
Eight years after the Equality Act was introduced, NAT learned anecdotally that pre-employment health questions were still being used in contravention of the Act. In 2018 we set out to assess how widespread the use of pre-employment health questions was by focusing on one sector in one locality. We chose the social care sector in London as we had already received a number of complaints from people living with HIV related to this sector. We know there are some misguided beliefs about HIV transmission risks within care settings.
We looked at the websites of over 1,000 providers, including the top five social care providers with the highest value contracts in each local authority, to find their application forms and assess whether they included unlawful health questions. We found 71 social care providers asking unlawful health questions. Of these, we successfully challenged 45 providers to change their practice by removing questions about health from their forms. We referred the 21 providers who did not respond to our correspondence to the Equality and Human Rights Commission and most of them have now changed their practice. Five providers appear to have closed since we started the project.
The total number of organisations asking unlawful health questions is almost certain to be higher than 71, as we inventoried only providers who put their application forms on open areas of their website. This means we did not include providers who didn’t have websites, who didn’t put their application forms on their websites, who may have given candidates questionnaires further along the application process, or asked health-related questions during interview.
It is extremely concerning that so much unlawful behaviour was easily identified. While we successfully challenged many providers to change their application forms, we are now campaigning for more work to do be done on this issue.
Local authorities are the responsible commissioner for social care services in their area and are bound by the Public Sector Equality Duty (PSED), which requires among other things that the local authority pays due regard to the need to eliminate discrimination. This means it must ensure that any third parties, such as social care providers, which exercise functions on its behalf do not discriminate. We have written to all local authorities in England calling on them to audit their providers to ensure they are not in breach of equality legislation. We are also working with the Care Quality Commission and Skills for Care to raise awareness of the law across the sector.
NAT believes that there should be equal access to the job market for everyone, regardless of any disabilities and health conditions. If you come across any pre-employment health questions then please let us know via firstname.lastname@example.org.
You can read more in our report, ‘HIV, disability equality and the continued use of pre-employment health questions’, here.