Most employers know that section 60 of the Equality Act 2010 means they are not generally permitted to ask job applicants questions about their health before making a recruitment decision about them.
It is also clear that not all applicants or employees tell the truth even if the right questions are asked. How then can employers avoid the tragic circumstances Glasgow City Council has found itself in?
In this case it would appear that Mr Clarke was just not a suitable candidate for the job he applied for. Employers are permitted to ask job applicants about their health where the questions are necessary to establish whether the person will be able to carry out a function which is ‘intrinsic’ to the work.
When hiring for a driving job therefore, it would be permissible to ask applicants questions relating specifically to their ability to drive a vehicle, since driving is intrinsic to the job. For example, applicants could be asked to confirm whether they have any disability or health condition which affects their ability to drive.
Section 60 also allows employers to ask health questions where they are at the stage of making a job offer to a particular individual or where that person has been shortlisted for a vacancy. At this stage, employers can make any job offer conditional upon the applicant passing relevant health checks and on the honesty of any information they give during such checks. The extent of the checks required should vary depending upon the type of role, so that the more safety critical the role is, the more checks it will be reasonable to make. When making a conditional offer therefore it might be sufficient to send the applicant a health questionnaire containing relevant questions about their health. If an individual is being hired in a safety critical role, as Mr Clarke was, an employer might well consider that this is not enough, and perhaps make any offer conditional upon an occupational health assessment and/or a review of the individual’s medical records. To focus their mind, the applicant should also be asked to sign a declaration confirming that any answers given in any questionnaire or health assessment are honest to the best of their knowledge and belief and that they understand that if the answers are false it could lead to their dismissal.
Whatever information the employer receives about the employee’s health, the employer must deal with that information fairly, and must not unfairly discriminate against a disabled applicant or employee. If information reveals that the applicant may have a disability, the employer will still have a duty to consider, and where appropriate make, reasonable adjustments for the disabled person.
See our further expert comments relating to the Glasgow bin lorry inquiry here.
Read our news update here.