Scope of the investigation into Elite Careplus Ltd in relation to its use of pre-employment health questions

Final terms of reference for the investigation into Elite Careplus Ltd under section 20 of the Equality Act 2006 in relation to its use of pre-employment health questions.

The Equality and Human Rights Commission is Great Britain’s national equality body with responsibility for enforcing section 60 of the Equality Act 2010.

Section 60 makes it unlawful, unless permitted by a relevant exception set out in section 60(6) of the Equality Act 2010, or required by another statutory provision (in accordance with paragraph 1 of Schedule 22 to the Equality Act 2010) for employers (and employment service-providers) to make enquiries about a job applicant’s health or disability before the applicant has been offered a job (on a conditional or unconditional basis), or before including them in a pool of successful candidates to be offered a job when a position becomes available.

The purpose of section 60 is to prevent candidates from having their applications screened out before being given the opportunity to demonstrate that they have the relevant skills and abilities to do the job.  Detailed health questions can discourage disabled applicants from applying for vacancies and contribute to their exclusion from the labour market.

The Equality and Human Rights Commission (‘the Commission’) is conducting an investigation under section 20 of the Equality Act 2006 because it has grounds to suspect that Elite Careplus Ltd is in breach of section 60 and is thereby committing an unlawful act contrary to section 60 of the Equality Act 2010.

The Commission suspects Elite Careplus Ltd of breaching section 60 by:

1. Asking health questions on its job application/registration form;
2. Failing to inform us that it believes an exception under section 60(6) of the Equality Act 2010 applies; and

Failing to inform us that it believes a statutory provision exists which would require it to ask the health questions.

The Commission will investigate whether during the period between 21 November 2018, when it first received evidence that Elite Careplus Ltd was asking pre-employment health questions, and publication of these terms of reference, Elite Careplus Ltd contravened section 60 of the Equality Act 2010 taking into account the following questions:

1. Was Elite Careplus Ltd an organisation to which applications for work were made
2. Did Elite Careplus Ltd ask about the health of any applicant:
   1. Prior to making a conditional or unconditional offer of work to the applicant;
   2. If it was not is a position to offer work to the applicant, before including them in a pool of successful candidates to be offered a position of work when a post became available;
3. If Elite Careplus Ltd did ask about the health of an applicant at such a time, were any such health questions lawful because either:
   1. one of the exceptions in s.60(6) applied; or
   2. another statutory provision required Elite Careplus Ltd to ask the applicant about their health, as per the exception at paragraph 1 of Schedule 22 of the Equality Act 2010.

The Commission will use its powers under the 2006 Act to obtain the necessary information to conduct its investigation.

Elite Careplus Ltd and interested parties are invited to make representations or submit evidence in relation to the investigation by 5pm on Thursday 18 July 2019. Such representations may be sent by post to:

Enforcement Team
Equality and Human Rights Commission
3rd Floor Arndale House
Arndale Centre
Manchester
M4 3AQ

Or by email to: s60enforcement@equalityhumanrights.com

The Commission will consider all information that it receives from Elite Careplus Ltd or any interested parties.