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Article: The Equality Act and Pre-Employment Health Enquiries by Chrsitine Jenner

It is easy to fall foul of the recent Equality Act when interviewing for a job. Christine explains how care must be taken in asking any health/disability questions.

Pre-employment screening is often seen as an invaluable tool in the selection and recruitment of potential employees by allowing employers to assess a candidate's ability to carry out a particular role. The use of pre-employment health questionnaires will assist an employer who wants to avoid hiring someone who may become incapable of fulfilling the role due to ill-health. Employers are mindful of the potential associated disruption and costs to them in managing an employees' prolonged absence from work and payment of sickness benefits. However, the use of pre-employment health questionnaires have been found to have the effect of not only discouraging people with disabilities from applying for roles, but discouraging employers from offering employment to disabled candidates.

The new prohibition

With the aim of combating some of the above issues the Equality Act 2010 (the Act), which came into force on 1 October, prohibits the use of pre-employment health questions before the potential employee has either been offered a job, or is within a shortlisted pool of successful candidates to be offered a role. The same prohibition applies to questions in reference requests or application forms concerning the number of days an employee has been absent due to sickness.

Asking a potential employee a pre-employment health question is not in itself a form of discrimination, acting in reliance on the information given in response may well be. So asking an applicant whether they are disabled before an offer of employment is made will not itself be enough to bring a claim for disability discrimination, but if an applicant confirms that they are disabled, the failure to offer the candidate the job may leave the employer open to a discrimination claim. Employers need to be prepared to justify a decision not to offer a position to an applicant, by recording clearly the reasons for a decision not to employ a candidate in order to demonstrate that they have not discriminated. 

It is worth noting that the prohibition on pre-employment health questions can only be enforced by the Equality and Human Rights Commission which has the power to launch an investigation into the use of prohibited questions and to take enforcement action. 

The exceptions

There are very limited exceptions contained in the Act allowing employers to ask pre-employment health questions. These are to:-

• establish whether an applicant will be able to comply with a requirement to undergo an interview or other assessment;
• establish whether reasonable adjustments will be necessary in connection with a requirement to undergo an interview or other assessment;
• establish whether an applicant will be able to carry out a function that is intrinsic to the work concerned; and
• monitor diversity (although any information gathered as a result of such questions should be held separately and not made available to those responsible for making a decision as to whether or not to offer the applicant a role)

The most challenging of these is to establish if the applicant will be able to carry out a function that is intrinsic to the work concerned. The explanatory notes to the Act gives the example of an applicant applying for a job in a warehouse which requires manual lifting and handling heavy items. As manual handling is intrinsic to the job, the employer will be permitted to ask the applicant questions about their health to establish whether they are able to do the job and to ascertain whether reasonable adjustments are required in the case of a disabled applicant. The employer will not be able to ask further health questions until the candidate is offered a job. The fact that many cases are not as clear-cut as the above example is a cause of concern for employers. It is advisable to take a cautious approach and assess whether asking pre-employment health questions is permissible in each individual case. 

What should employers do?

Employers should examine their recruitment policies and procedures. Where employers are using pre-employment health questions they should consider whether the questions fall within one of the exemptions above. Consider seeking legal advice to ensure compliance and/or the use of a professional such as an Occupational Health advisor to help draft appropriate questions. It is crucial to know what questions to ask and make sure all questions are drafted very carefully. The narrower and more specific the questions asked, the more likely they are to fit within one of the exemptions. 

Employers should also review all job descriptions to ensure that all the requirements contained within them are essential.

An employer can make any job offers conditional upon medical clearance and reserve the right to withdraw the conditional offer; but make sure that the withdrawal is only in circumstances where the disability has a detrimental effect on the applicant's ability to perform the particular job. Merely identifying a prospective employee has a disability is not enough. Employers must then consider carefully whether reasonable adjustments can be made to accommodate any issues highlighted by the medical questionnaire before withdrawing a conditional offer. Failure to do so may place the employer at risk of a direct discrimination claim. 

Employers should also be looking to train their HR teams and those involved in recruitment to ensure they do not fall foul of the law by, for example, asking the wrong question at interview.

Christine Jenner is a Partner in the employment department of Davies Arnold Cooper LLP. 

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