This article is one of a series of case studies in Transforming Lives Using the Law by Professor Lisa Vanhala and Dr Jacqui Kinghan (pictured) which demonstrate how civil society can use legal action of different kinds to bring about positive change.
When someone is applying for a job, it is illegal to ask them any health questions that do not relate directly to the role. This is to ensure that employers don’t discriminate against applicants with a disability or long-term health condition, and also to help people with disabilities or health conditions to feel confident about applying for any job. This law was written into the Equality Act 2010 as a result of campaigns by several charities, including the National AIDS Trust (NAT). There is some evidence that this legislation has been a success. For example, according to research by Disability Rights UK, the number of occupational health employers that ask pre-employment health questions has been declining, from 36% in 2006 to 8% in 2013.
However, NAT believes that changes have not gone far enough fast enough. Chris Hicks, former Senior Policy and Campaigns Officer at NAT, notes that almost ten years after the passage of the Equality Act, the organisation was hearing complaints that discrimination was still taking place as the result of pre-recruitment health questions. It seemed that many employers were either unaware of the law, or unwilling to follow it due to the low risk of enforcement action. Chris notes that, “It is not enough to secure change in legislation, there has to be advocacy around enforcement of the legislation.”
In response to this, NAT undertook a project, funded by Trust for London, to determine if pre-employment health questionnaires were being used unlawfully in the social care sector. Chris notes that the organisation focused on this sector because “social care historically hasn’t been set up to meet the holistic needs of people living with HIV in older age.” NAT sent a Freedom of Information (FOI) request to all local authorities in London, asking them to list the providers they commissioned for both domiciliary and residential social care.
All 33 local authorities in London responded and the organisation was able to identify thousands of commissioned providers. Staff at NAT then looked at the websites of over 1,000 providers to see if their online application forms included unlawful health questions.
Through this research, NAT identified 71 providers using unlawful health questions and contacted them by letter. NAT informed them of their breach of legislation and asked them to confirm a change in practice. With each letter they included guidance that had been developed by the Equality and Human Rights Commission (EHRC) on the use of health questions in recruitment.
For the most part, social care providers responded to this nudge to change their unlawful behaviour positively. Chris notes that when it was pointed out to them that they were in breach of the Equality Act, “a number of providers were very quick to make changes, quite apologetic, wanted more advice on the issue and we built relationships.”
“A number of providers were very quick to make changes, quite apologetic, wanted more advice on the issue and we built relationships.”
When providers did not respond within two months, further attempts were made to contact them and establish a dialogue via email and phone. In instances where providers did respond, NAT staff supported them to modify their application forms by demonstrating how to identify which questions were unlawful, how to comply with the relevant section of the Equality Act, what questions would fall under an exemption, and how to lawfully ask questions about reasonable adjustments that may be needed for the recruitment process. NAT literature and guidance was also shared with providers which discussed how to ensure that wider employment and social care practices meet the needs of people living with HIV. 45 providers removed the health-related questions from their forms as a result of NAT’s intervention.
Providers who did not respond were referred to the EHRC for enforcement action. NAT published a report about the project in February 2019 – HIV, disability equality and the continued use of pre-employment health questions – that outlines their approach and key lessons learned.
NAT and the EHRC also worked with the Care Quality Commission (CQC) and Skills for Care to raise awareness among inspectors of the unlawful use of pre-employment health questions. As a result, CQC have published internal guidance for their inspectors, including a procedure for referring care providers to the EHRC in the event that unlawful health questions are identified at inspection.
The collaboration between the EHRC and NAT had been agreed in the early stages of the development of the project and is an example of how charities and statutory bodies can complement each other’s work. The project also shows that persistence pays off.
The collaboration shows that the EHRC are taking this issue very seriously… When they receive referrals from organisations like us, they are very good at being communicative, taking it seriously, doing good work on it.
Although the Equality Act did not change things overnight, NAT’s follow-up project shows how collaboration, intervention and perseverance are sometimes needed for the law on paper to become the law in practice.