Expert Comments on what health questions can be asked of prospective employees...
What questions are not permitted?
Following the prospective implementation of section 60 of the Equality Act on 1 October 2010, there will be a general prohibition on asking pre-employment health questions of applicants.
Employers will no longer be permitted to ask about the health of a job applicant (a) before offering work to them, or (b) before including them in a pool of applicants, where one of these applicants will be offered the job.
What questions are permitted?
There are specified circumstances in which employers will continue to be permitted to ask pre-employment health questions. It will still be possible to ask questions that are necessary for the purpose of:
- Establishing whether the applicant will be capable to undergo an interview or other assessment
- Establishing whether the employer has a duty to make reasonable adjustments in connection with such an interview or assessment
- Establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned,
- Monitoring diversity in applications,
- Taking positive action in relation to applicants with a disability (eg guaranteeing an interview for disabled applicants),
- Establishing that the applicant has a particular disability, where having that particular disability is a requirement of the particular role.
In relation to questions required to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned, it is not entirely clear from the legislation exactly what wording should be used when asking these questions.
For example, if a job requires manual handling and heavy lifting, an employer might be able to justify asking an applicant if they have any medical conditions which limit their ability to lift heavy objects. However, the employer may not be able to justify asking whether the applicant suffers from any mental health problems, for example, as this may not be sufficiently relevant to the actual job to be done.
The exact nature of the questions that can and cannot be asked will likely be ripe for litigation.
It seems that questions relating to the current health of the applicant would be more acceptable as they focus on the applicant’s capabilities at that point. Questions relating to the applicant’s medical history, however, do not indicate whether or not an applicant would be able to carry out particular work at present, and so would more likely be prohibited.
What is clear at this stage is that an all-encompassing questionnaire covering every aspect of a person’s past and present health will be fraught with danger under the new law.
Consequences of non-compliance
Whilst asking an applicant pre-employment health questions will not in itself amount to discrimination, acting on the answers may well do.
Certainly, if an applicant is asked prohibited pre-employment health questions and the employer does not offer the individual the job, it is likely that the employer will face a disability discrimination claim at a tribunal. The pre-employment health questionnaire could be used as evidence of discrimination. The burden of proof will fall on the employer to prove discrimination did not take place.
The Equality and Human Rights Commission (EHRC) can investigate employers who are suspected or found guilty of discrimination. Employers could be fined up to a maximum of £5000.
Action to be taken
Employers should review their recruitment policies prior to 1 October 2010 and, if currently used, review their pre-employment health questionnaires so that they include only those questions that will be permitted under the Equality Act.
Just Employment Law will be pleased to advise on, and assist with, any such review required.