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Lord Addington moved Amendment No. 23:


Page 2, line 38, at end insert:
("( ) An employer shall not conduct or require a medical examination or make enquiries of an applicant for employment as to whether he is a disabled person or as to the nature or severity of any disability prior to an offer of employment unless—
(a) to ascertain the ability of the applicant to perform job-related functions, or

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(b) to conduct equal opportunities monitoring, where this information is collected and maintained on separate forms and is treated as a confidential record to be used solely for monitoring purposes.").

The noble Lord said: This amendment is designed to try to remove one of the glass ceilings which is placed in the way of people with disabilities. Indeed, it is one of the more subtle ways in which discrimination can be applied—that is, by requiring on a job application form the applicant to disclose whether or not he is disabled.

The amendment provides two opt-outs. The first is in relation to physical requirements. For example, if the job involves lifting heavy objects, and so on. But, as we know, increasingly for most jobs you have to sit down and play with a computer. "Play" is probably the wrong word and I see that the noble Baroness, Lady O'Cathain, gave me rather a hard stare when I said that. Most jobs do not require specific physical activities. They merely require a person to be there, sit down and have an active mind. Indeed, the state of computer technology is such that you do not have to use a keyboard; you can speak into a microphone to operate a computer.

We are trying to prevent one form of discrimination which takes place. Scope carried out a study of two people who had exactly the same qualifications, one of whom had cerebral palsy. The person with cerebral palsy had one-sixth of a chance of reaching the interview stage.

Most types of discrimination are based on a misunderstanding of the nature of the disability. I believe that most of the time, the discrimination stems from ignorance rather than malice. If people reach the interview stage, their personality takes over and their disabilities recede. If the Government are prepared to accept an amendment of this nature, they would create a situation in which employers would not be able to hide behind their ignorance and would not be denied the opportunity of engaging extremely valuable employees. That, on top of the benefits, would undoubtedly be there for the person who actually has the disability. I hope that the Government will find it in their heart to accept the amendment, or something very similar to it. I beg to move.

Lord Swinfen: I support what the noble Lord is trying to do. However, as regards my own organisation, it is possible that what he proposes would cause chaos because we actually prefer to employ disabled people. Therefore, we would like to know, before interview, which applicants are disabled. Somehow one has to overcome that difficulty. It is possible that one would have to issue licences to exempt people from the provision. But, generally speaking, the noble Lord is quite right: one should advertise for people, see from the papers that they submit whether they are the type of people that one wants to employ and then interview them.

Most of the time, the fact that the person is disabled will come to light in any event at the interview without the question being asked. But in the case of a body which specifically prefers to employ disabled people—for example, there are some organisations which rather like to employ blind telephonists because they are extremely good—we would be putting a barrier in its way. I believe

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that the noble Lord should look again at the matter and come back from the rather different direction that he has taken to achieve his objective.

Lord Rix: From the same perspective as that outlined by the noble Lord, Lord Swinfen, I should like to say a few words about the difficulty of the proposed new subsection as regards the British Actors' Equity Association. Before they take part in a film or television programme, actors, especially if they are leading actors, have to acquire insurance. Therefore, they always have to undergo a medical examination before they are offered the job. If they do not pass that examination, they are not offered the job. Although I sympathise with the intention behind the proposed new subsection, I believe that it could, perhaps, cause some further difficulties in the already rather threadbare employment opportunities available for the artistic profession in the theatre.

Baroness Gardner of Parkes: I support the principle of the amendment. I believe that it is very desirable, as I said earlier on the HIV issue, that people should not have to undergo compulsory testing if it is unrelated to their occupation. However, there are other instances that I could cite. For example, if one wishes to be an airline pilot or something like that, it is most important to have a medical test because the lives of everyone else will be placed in one's hands.

However, I should like to see an amendment of the type which would cover the situation where a test was not specifically related to the employment in question. For example, I have in mind a case with which I dealt many years ago which concerned the health service. A man had been dismissed because of his health. However, when we were going through the appeal hearing it turned out—only because he never revealed the fact before—that he was a hepatitis carrier. He had been serving meals to very elderly, ill people and those coming into hospital for operations. Therefore he was totally unsuitable for that work. For such a job, it is necessary for him to be clear of all sorts of infections that could be passed on to patients.

Therefore, there are instances where a test can be required. But I should like to see the principle that the noble Lord has put forward expanded to cover any unnecessary tests. I also accept the statement made by the noble Lord that if the person puts on his application form the fact that he is disabled—and I believe that I said this on Second Reading—he will not be interviewed, while the very same people would offer that person a job if they did not know he was disabled.

Baroness Jay of Paddington: Like the noble Baroness who has just spoken, we on these Benches also support the principle behind the amendment, but are rather concerned about some of the points raised by the noble Lord, Lord Swinfen, and other speakers. If it is possible, we would like to see an arrangement which would allow for there to be information which is relevant to employment without there being any implication, as the noble Baroness, Lady Gardner, just said, that some irrelevant test may be regarded as a subtle form of discrimination. I do not know whether it is possible for the noble Lord to introduce another amendment, but the principle involved is certainly most important.

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Earl Russell: It is possible that I may be able to help the noble Lord, Lord Swinfen, to whom I listened with great care. Paragraph (a) of the amendment allows employers,


    "to ascertain the ability of the applicant to perform job related functions".

In the occupation of the noble Lord, Lord Swinfen, understanding disabled people and being able to communicate and share things with them is surely a job-related function and, therefore, would fall within the terms of the amendment.

I agree with the point made by the noble Baroness, Lady Gardner of Parkes. The key question is: what is a job-related function? All the ambiguity in that respect is in a story that Lord Baden-Powell used to tell of a soldier turned down on an Army medical for having bad teeth. He came back from the medical complaining bitterly that one was expected not only to kill the enemy but also to eat him.

Lord Inglewood: We have had a most interesting debate on the amendment from a number of different perspectives. I should like to make one point clear before I begin my response. The clause under review relates to people who are already disabled.

I support the broad intention behind the amendment, which is clearly to prevent medical examinations being required, or questions being asked, where the information obtained might be used to discriminate unfairly against disabled people. I have serious concerns about how that would work in practice. I also do not believe that unnecessary rules and regulations should be imposed on employers. However, I doubt whether specific obligations of that sort are needed to achieve the objective.

The effect of the amendment would be to make unlawful medical examinations, or inquiries, of an applicant for employment as to whether he is a disabled person or as to the nature or severity of any disability prior to an offer of employment unless to ascertain the ability of the applicant to perform job-related functions, or to conduct equal opportunities monitoring.

To forbid medical examinations in the manner contemplated by the amendment would be an inappropriate interference, going well beyond the protection of disabled people. The restrictions on questioning are even more far reaching. Almost any inquiry could touch either directly or indirectly on possible effects of a disability, so, if the amendment were accepted, there may be few lines of questioning open to an employer when recruiting that would not carry the risk of a complaint of discrimination being brought against him. I do not accept for a moment that the only questions an employer should ever ask at an interview should be those directly related to essential job activities.

Moreover, the amendment would often work to the detriment of an applicant with a disability. For example, a prospective employer would not be able to ask questions about whether an applicant needed special arrangements to attend an interview; about the travel arrangements if appointed; or about his ability to use ancillary facilities such as car-parks and rest rooms. Perhaps more seriously, in some industries, the amendment would prevent an employer operating compulsory medical examinations

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for employees doing work involving exposure to a health risk—the kind of point raised by my noble friend Lady Gardner. Moreover, not all tests and questions are for the employer's benefit. Some are necessary to consider how a person with a disability could best be accommodated in matters that might not be directly related to the job functions. The restrictions imposed by the amendment would not result in good employment practices.

I see further difficulties with the confidentiality provision. The requirement might conflict with what is best to ensure that steps are taken to safeguard an employee's health and safety. It may be necessary to inform close colleagues who are working alongside a disabled person of the nature of the disability, for example, so that the employer could ensure that in an emergency special assistance can be provided for a disabled person, if that is necessary.

There are adequate safeguards in the Bill for disabled people. A disabled employee or applicant would be able to pursue a complaint to an industrial tribunal if an employer unjustifiably used information from a medical examination to discriminate against him. That seems to be a most crucial point in the context of the current debate. In the light of the various points that I have made, I hope that the noble Lord will consider withdrawing his amendment.


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