Pre-employment health questionnaires

By Thalis Vlachos
Published: 04:13PM BST 04 Oct 2010


The Equality Act 2010 is imminent, with the major provisions coming into force on the 1st October 2010.

It will have a significant impact on employer's recruitment procedures, company employment practices, and diversity strategies.
 
One of the most controversial changes is the one banning pre-employment health questionnaires.
 
We've considered the impact of the new Act from both an employer's and employee's perspective, and looked at how best to resolve issues that may arise as a result of the changes in the law. 
 

What does the ban on pre-employment health questionnaires mean?

The current law has been criticised as inadequate in addressing discrimination against disabled candidates in recruitment, particularly those with mental health problems who are often put-off from even applying for jobs by the prospect of having to answer pre-employment questions about their health. 
 
The current law allows employers to ask candidates general health questions, prior to interview and at the selection process.
 
Under the new law, it will be unlawful for employers to ask questions about a candidate's health before an offer of employment is made, unless certain exemptions apply.

The most commonly used exemptions are likely to be where the questions are necessary to:

  • determine whether adjustments need to be made at the interview stage to assist the candidate in the selection process
  • ascertain whether the candidate will be able to carry out a function which is intrinsic to the role in question

The Equality Act is supplemented by Explanatory Notes providing examples of where health related questions may be necessary. One example is:

"An applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job."
 
Where an exemption applies employers will be able to ask pre-employment health questions. If an exemption does not apply then an employer will still be able to ask questions about health but only after they have made an offer of employment.
 
A breach of the ban on asking pre-employment health questions can only be directly enforced by the Equality and Human Rights Commission who may launch an investigation where they have information that employers are routinely asking pre-employment health questions.

Individuals can't enforce the provision directly, but where they're bringing a claim of disability discrimination the burden of proof will shift to the employer if they have asked pre-employment health questions.

From an employer's perspective

  • You should check your recruitment practices and policies. In particular check for any pre-employment 'standard' health questionnaires prior to interview and selection and consider if any of the exemptions are likely to apply. From 1st October questions will be raised only under the prescribed circumstances above.
  • If you want to rely on an exemption to ask pre-employment health questions, ensure you receive legal advice before you do so. The law will be in its infancy and it is not clear on how these questions should be addressed.
  • In the example above - before raising the question on lifting, consider the job description in detail. What is the extent of the lifting, the weight, the volume and other tasks that the successful candidate will be expected to undertake. This should be clearly set out in the job description in the application.
  • You must ensure that any question posed concentrates on the applicant's current disabilities and not past disabilities.  
  • Remember that the law does not only apply to prospective employees but also to contract workers, business partnerships, office-holders, barristers and advocates. 
  • Asking a question may not in itself amount to disability discrimination but acting on the answers may do. 
  • If as an employer, you do ask candidates about their health, you may have to justify your reason for not selecting the candidate or not offering the candidate a position in the tribunal. 
  • Ensure that you adequately record specific reasons for rejecting candidates at selection and at interview and where health questions are posed, record in writing why they have been included. 
  • If an employer is found guilty of disability discrimination, they will be liable for unlimited compensation.

From an employee's perspective

  • Prospective employers can no longer ask at selection or interview stage general questions about your health without one of the exemptions applying.
  • Ensure that you retain any pre-employment health questionnaires or take contemporaneous notes of discussions that are potentially discriminatory as evidence of discrimination. 
  • Ensure that any prospective employer does not probe any more than is necessary to determine whether you can perform the role advertised. Any questions on disability, not related to the position applied for or past disability that is cured will not be relevant.

What should employers do?

  • Employers must ensure that their recruitment policies and practices are up to date.
  • It should be clear to candidates why they've been asked to address health issues relating to the position they are applying for.

What are the options available to the parties?

  • Employers can ask more detailed health questions pertaining to the position once an offer has been made. They must then either make reasonable adjustments if necessary for the individual to perform the job or, if that is not possible withdraw the offer.
  • Employees must ensure that they provide accurate health information to prospective employers where relevant, as it would be open for employers to subsequently withdraw any offers that were made based on inaccurate information supplied by the candidate.

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