From Exclusion to Inclusion

Employer Inquiries about Applicants' Disability and Medical Examinations

57. We were concerned about employers rejecting job applicants who disclosed their disability at the application stage and before they had the chance to demonstrate their suitability for jobs at the interview stage. The DDA allows inquiries and medical examinations of applicants before a job is offered but this might be discriminatory if not applied equally to all applicants. Following a job offer, the DDA allows medical examinations and inquiries in relation to a particular job, if these can be justified.

58. We rejected making all inquiries about disability before a job was offered unlawful. It would be unfair to the applicant who may require a reasonable adjustment at the application or interview stage and unfair to the employer who may find that, once a job is offered, there are no reasonable adjustments that can be made to enable the disabled applicant to do the job. We therefore decided on the following improvement to the present position.

Recommendation 5.32: Disability or disability-related enquiries before a job is offered should be permitted only in limited circumstances:

when inviting someone for interview or to take a selection test, employers could ask if someone had a disability that may require reasonable adjustments to the selection process; and

when interviewing, employers would be allowed to ask job related questions, including if someone had a disability which might mean a reasonable adjustment would be required.

Further consideration should be given to other circumstances where such enquiries should be permitted, for instance, for monitoring purposes, with rules on confidentiality of information obtained, and in the particular case of the guaranteed interview scheme.

59. This recommendation would still leave job applicants who required reasonable adjustments to the application form in the position of having to disclose their disability. However, there was no easy solution to this and the recommendation does allow a disabled applicant the choice of deciding whether to disclose their disability.

60. We considered that it was reasonable for employers to make job offers conditional on passing a medical or other test, if this was justified. It may be clear at interview that a disabled person will require reasonable adjustments and, if justified, the employer should be able to request a medical test or ask about job-related needs, even if he does not require this of every person offered a job.

Recommendation 5.33: Except for the circumstances in recommendation 5.32, disability or disability related inquiries should only take place, where justified, when a job offer, conditional on passing a medical or other test, has been made.

Occupational Pensions

61. DDA regulations allow that, in certain circumstances, disabled people's access to certain occupational pension scheme benefits can be denied or restricted; and, disabled people can be required to pay full contributions whether or not they have access to the full rate of benefits. Our consideration of this issue was helped by independent research commissioned on our behalf. ³⁹

62. We agreed that there should be equal access to membership of occupational pension schemes for all disabled people when they start employment. However, we recognised that where disabled people chose to join a scheme late, there might be concerns about 'adverse selection' (ie. knowingly joining a scheme because of a high chance of benefiting from it early). We therefore agreed that restricted access should continue to be permitted for 'late joiners' (or re-joiners), though this should be more strictly limited.

Recommendation 5.34: Occupational pension schemes should be required to offer equal access to scheme membership for disabled people when starting their employment. Restricted access to certain benefits should be permitted for disabled people choosing to join a scheme later in their employment or re-joining a scheme, but only if: restricted access to benefits is strictly limited to a specific pre-existing impairment or condition; such restrictions can be justified, eg. based on relevant and reliable information such as up-to-date actuarial or statistical data; and schemes regularly review any restrictions or impose time limits on them.

Recommendation 5.34: Occupational pension schemes should be required to offer equal access to scheme membership for disabled people when starting their employment. Restricted access to certain benefits should be permitted for disabled people choosing to join a scheme later in their employment or re-joining a scheme, but only if: restricted access to benefits is strictly limited to a specific pre-existing impairment or condition; such restrictions can be justified, eg. based on relevant and reliable information such as up-to-date actuarial or statistical data; and schemes regularly review any restrictions or impose time limits on them.

Recommendation 5.35: Occupational pension schemes should have to make 'reasonable adjustments' to their documentation and information.

Recommendation 5.36: Coverage of insured benefits provided by an occupational pension scheme by section 17 of the DDA should be clarified in future guidance to prevent confusion with the provision of group insurance under section 18 of the DDA.

Recommendation 5.37: In principle, in line with arrangements for Equal Pay cases, complaints of disability discrimination against trustees and managers of occupational pension schemes should be heard by employment tribunals.

Group Insurance

63. The DDA protects disabled people where an employer has entered into an arrangement with a provider of group insurance services to provide such insurance for employees. Regulations which define group insurance help ensure that insurance organisations are not made liable for the discriminatory acts of employers, for example where such acts were committed by the employer as an agent of the insurer. We were aware that these regulations were seen by some groups as rather limited because, as there is no power in the DDA to make regulations allocating liability between an employer and an insurance company, the regulations have been drafted so as to ensure that insurance companies are only responsible for their own acts of discrimination.

Recommendation 5.38: Changes should be made to legislation to ensure that an insurer offering group insurance will only be liable for his own acts of discrimination and not those performed by an employer as his agent. (The employer's responsibilities would remain the same.)

³⁹ 'Occupational Pensions and Disabled People', Institute of Employment Studies (see Annex B)

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