Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2

One of the major reforms contained in EA10 at s.60 is the prohibition on employers asking questions about job candidates health before offering them a job or placing them in a pool of applicants from whom future recruits are selected.  This will probably include asking questions about sickness absence history. If an employer, prior to making a job offer, does ask questions about the applicant’s health and then relies on that response to reject the candidate, they will be in breach of s.60 and liable to a claim by the applicant and/or enforcement action by the EHRC.

Under the existing law a prospective potential employee can be asked to complete a medical questionnaire or even attend a medical examination before a job offer is made.  Currently if a disabled person is rejected for a role because of their disability they may be able to bring a claim against the recruiting employer, albeit such claims are difficult to prove. After 1st October that will be a breach of the EA and a rejected candidate, who fulfils the criteria for being disabled, could bring a claim for discrimination. EA10 simplifies the definition of disability meaning that more people are likely to qualify as being disabled and thus more likely to gain protection. If the Claimant brings a claim for Direct Discrimination the burden of proof is automatically reversed so that the employer would have to prove that no discrimination took place, thus making life for the Claimant very much easier.

Furthermore, the EHRC is given statutory power to enforce this provision – which can include imposing a fine on an employer of up to £5,000. In reality, especially for large employers, this may be a more worrying remedy.

There is nothing to stop an employer from making enquiries about the person’s health or disability or making a job offer conditional upon the prospective employee passing a medical once they have been selected.

In some very limited cases an employer can ask questions prior to making a job offer;

1.  To assess whether the employer is under a duty to make adjustments to the selection process.

2. To decide whether an applicant can carry out a function that is intrinsic to the job (i.e that is fundamental or essential to the role that has to be performed)

3. To monitor diversity

4. To take positive action to assist disabled people

5. To establish that a candidate has the disability that is a genuine occupational requirement

The ACAS Guide sets out some examples of circumstances in which it would be lawful for an employer to ask health related questions prior to offering the job.  In the case of (2) above, if the job required heavy lifting then it would be lawful to ask a mobility impaired candidate if they could manage heavy lifting.

Many employers currently ask health questions on application forms prior to making job offers.  These should be removed or specific health related questionnaires should not be sent out before a job offer has been made to avoid falling foul of the Act. If questions on health need to be asked pre-offer ensure that they fall within the above five categories. It is still prohibited to discuss the candidate’s health or disability even if they raise the issue.

No doubt some unscrupulous employers might try to circumvent the provisions of s.60 by claiming that questions about disability are really for the purpose of monitoring diversity.  In my view, they risk a complaint to the EHRC if they do.

If you’re an employer, what do you currently do?  What steps will you take to comply with the new law?

If you need advice please contact me through my firm, Dale Langley & Co – michaelscutt@dalelangley.co.uk

Tomorrow: What defences are available to employers?

Boring Legal Disclaimer

The above summary is only my understanding of the law and does not constitute legal advice to you.  You should not take any action in reliance upon it.  Don’t blame me if it goes wrong.