October 2010

By Simon Bevan, Partner at Veale Wasbrough Vizards

Special arrangements apply to schools in their recruitment procedures.  Schools are heavily regulated in their practices for example by the Education (Independent School Standard) Regulations 2010, the National Minimum Standards for Boarding Schools, both revised and effective from 1 September 2010.  Safeguarding Children and Safer Recruitment in Education is currently under review and more changes to the safeguarding regime are likely.  The Vetting and Barring Scheme is on hold and all of the above require further comment in a future article.

There is one aspect of the recruitment process that will change from 1 October 2010.   New provisions come into force on 1 October in the Equality Act 2010 ('EA').  The EA consolidates most existing discrimination law into one Act.

Background
Existing and new provisions preventing disability discrimination are all now included within the EA.  We have been taking action for years to prevent discrimination in the arrangements we make to interview candidates and to consider reasonable adjustments to enable someone to perform the role.  Such action was considered part of creating a "level playing field". 
The EA turns this on its head.  This followed intensive lobbying by disability awareness groups who consider knowledge of disability and ill-health issues as the biggest barrier to recruitment.  They argue that it is only when prospective employers are unaware of the health of candidates that health and disability will no longer affect the recruitment decision.  The EA  changes the law so that you will no longer be able to inquire about the health of a candidate until the offer of employment is made.  This has far reaching consequences for existing practices. 
The Equalities and Human Rights Commission have authority to investigate and employers could  face a County Court injunction or a claim for disability discrimination ("DDA") if there are pre-employment queries about health.

What do you need to do now? 
We must all be very wary of the recruitment process and ensure that at each stage we minimise the risk of allegations of discrimination.

Recruitment and selection policy ("the Policy")
It is always important to explain to individuals, what you are doing and why.  So for example, the Policy should explain that the school will ask for the date of birth of applicants and that this is necessary to ensure the school complies with its safer recruitment obligations by undertaking due diligence on career history.  Likewise, the Policy should be updated to explain the school's approach to verifying medical fitness and that no inquiries will be made until the offer of employment. 

Planning a vacancy
When preparing to fill a vacancy, the job description and person specification should be drawn up to focus on the duties and the qualifications required.  It is only in  exceptional cases where health could be considered at this and at interview stage.  Examples include an acceptable level of eye-sight where you are recruiting for a mini-bus driver.  In all other cases, health requirements and questions about health will expose you to the risk of a successful DDA claim.

Application form
It has long been considered good practice to ask about health to establish whether reasonable adjustments may be considered to attend interview or to perform the role.  These sections should now be deleted.  If you ask the question,  it will be assumed you have discriminated unless it can be shown there was another reason for non-selection for interview.  Don't take the risk, amend the form.

Invitation to interview
One area of risk which is more difficult to manage is the invitation to interview.  A candidate may require assistance but we have already advised, don't ask about assistance required in the application form.  It is reasonable to ask the question in the invitation letter however.  At this stage the short listing exercise has been completed and health was no factor in this decision making process.  Any attendance requirements should not be disclosed to the interview panel.  Forewarning of practical support will avoid any difficulties on the day.

Interview
In general, you must not ask an applicant questions relating to health or disability.  Instead, ask whether someone has the relevant skills, qualities and experience to do the job.  Any questions about health or disability are liable to create the risk of a claim if someone is not subsequently appointed.  This is a complete change from existing practice where the recommendation was that candidates were engaged in discussions about reasonable adjustments.  In addition to one member of every interview panel having completed the NCSL/CWDC safer recruitment training, (as required since 1 September 2010) it is more important than ever that colleagues have up-to-date equal opportunities training and are aware of this change.   

References
Safer recruitment guidance has always recommended that at least two references should be taken up prior to interview wherever possible.  In practice this has always been difficult.  Schools generally take up references only after the job offer is made.  We always recommend that pro forma reference requests are used which include the safer recruitment questions.  The pro forma also includes questions about suitability and absence levels.  This information is still required but can only be requested after offering employment.  If references are sought prior to interview, any questions about health must be deleted.  Please remember that when references are received, a proper review should be undertaken to ensure that information in the application form and information provided in the interview are consistent.  Further discussion with the individual is sometimes required at this point.       

Conditional offers
Schools must verify the medical fitness of an employee and the offer of employment should be conditional upon that fitness.  Practices as to verification differ from self certification by the individual to full medical examination.  We recommend at the least that the selected individual is asked to complete a medical questionnaire which is then reviewed by a qualified professional.  The health questionnaire should not be provided until an offer is made.  If the questionnaire highlights a concern over the individual's health, it is only finally at this stage that health and possible  reasonable adjustments may be considered.  Consideration of health and fitness is no longer acceptable at an earlier stage but of course is still required to complete the single central register.

Conclusion
By ensuring that health is not considered in the recruitment and selection process, schools will minimise the risk of a DDA claim.  It is only once the job has been offered and medical information received, that we finally consider the individual's health and fitness to perform the role.  Where health could impact on someone's ability to perform the role, this should be considered as part of a capability procedure.  The procedure will involve medical report, consultation with the individual, the consideration of reasonable adjustments and alternative roles in the same way as this would be managed with an existing employee. 
The changes outlined above are intended to level the playing field for job applicants by making employers "disability blind".  Amendments to policies and procedures and training for staff are all essential to ensure that schools comply with their legal and best practice obligations.

Action points

1. Review recruitment practices and procedures.
2. Amend recruitment and selection forms.
3. Ensure staff are properly trained in safer recruitment and equal opportunities.

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