motion_title: Equality Bill: New Clause 40— Enquiries about disability and health
motion_text: I beg to move, That the clause be read a Second time.
  
  Clause text:
  
  New Clause 40— Enquiries about disability and health
  '(1) This section applies where-
  (a) a person (A) does not proceed with an application by another person (B) for work, after asking about B's health but before making a relevant decision, and
  (b) B brings proceedings before an employment tribunal on a complaint that A's conduct in relation to B's application is a contravention of a relevant disability provision.
  (2) In the application of section 132 to the proceedings, the circumstances described in subsection (1)(a) are to be treated for the purposes of subsection (2) of that section as facts from which the tribunal could decide that A contravened the provision.
  (3) The reference in subsection (1)(a) to making a relevant decision is-
  (a) if A requires applicants to undergo one or more assessments, a reference to deciding in the light of the first assessment which applications to proceed with, or
  (b) in any other case, a reference to deciding to whom to offer the work (whether by a conditional or unconditional offer).
  (4) An assessment is an interview or other process designed to give an indication of a person's suitability for the work concerned; but a condition to undergo an assessment is not to be regarded as a condition for the purposes of subsection (3)(b).
  (5) This section does not apply to a question that A asks in so far as asking the question is necessary for the purpose of-
  (a) establishing whether a duty to make reasonable adjustments is or will be imposed on A in relation to B in connection with a requirement to undergo an assessment,
  (b) monitoring diversity in the range of persons applying to A for work,
  (c) taking action to which section 154 would apply if references in that section to persons who share (or do not share) a protected characteristic were references to disabled persons (or persons who are not disabled) and the reference to the characteristic were a reference to disability, or
  (d) if A applies in relation to the work a requirement to have a particular disability, establishing whether B has that disability.
  (6) Subsection (5)(d) applies only if A shows that, having regard to the nature or context of the work-
  (a) the requirement is an occupational requirement, and
  (b) the application of the requirement is a proportionate means of achieving a legitimate aim.
  (7) "Work" means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the reference in subsection (3)(b) to deciding to whom to offer work is, in relation to contract work, to be read as a reference to deciding who to allow to do the work.
  (8) The following, so far as relating to discrimination within section 13 because of disability, are relevant disability provisions-
  (a) section 37(1)(a) or (c);
  (b) section 39(1)(b);
  (c) section 42(1)(a) or (c);
  (d) section 43(1)(a) or (c);
  (e) section 45(1)(a) or (c);
  (f) section 46(1)(a) or (c);
  (g) section 47(3)(a) or (c);
  (h) section 48(3)(a) or (c);
  (i) section 49(1);
  (j) section 53(1)(a) or (c).
  (9) For the purposes of this section, whether or not a person has a disability is to be regarded as an aspect of that person's health.
  (10) This section does not apply to anything done for the purpose of vetting applicants for work for reasons of national security.
  (11) Asking about the health of an applicant for work is not of itself a contravention of this Act by virtue of section 13 (although action taken in reliance on the information given in response may be).'.- (Vera Baird.)