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Can you still make pre-employment health enquiries?

01 April 2011

Can you still make pre-employment health enquiries?

One of the more controversial provisions introduced under the Equality Act 2010 (‘the Act’) is section 60, which prohibits the use of health questionnaires in all, but a few limited circumstances, prior to the offer of a job being made.

In view of the problems that could be encountered we are encouraging our employer clients who have used pre-employment health questionnaires, to revisit them and assess whether they are really necessary.

From 1 October 2010, use of such questionnaires could cause problems for employers on two fronts. Firstly, if a job applicant feels that a prospective employer has acted unlawfully by asking prohibited questions, they could make a complaint to the Equality and Human Right’s Commission (‘EHRC’). The EHRC has the power to investigate and to take enforcement action, which could result in a fine of up to £5,000. Secondly, it is open to a disabled applicant, who has been unsuccessful in their application, to lodge a complaint of disability discrimination at an Employment Tribunal alleging that the prospective employer relied on the information in the questionnaire. It is then up to the employer to establish that the reason for rejecting the applicant was non-discriminatory. In other words, the burden will pass to the employer.

So what is it that section 60 of the Act prevents?

As a starting point, it expressly states that a person/organisation to whom an application for work is made must not ask about the health of an applicant before offering work. There are, however, limited exceptions including the following: (1) finding out whether the candidate is able to carry out a function intrinsic to the job; (2) establishing whether adjustments are needed for the interview and the selection process; (3) monitoring diversity; (4) taking positive action to assist disabled applicants; and (5) establishing whether the applicant has a disability that is a genuine requirement of the job.

The Act clarifies that pre-employment health questions in and of themselves will not amount to actionable discrimination. It is what the employer does in response that may do. The key, therefore, if an employer opts to ask any questions about health, for any of the limited reasons outlined above, is firstly to make sure that they inform candidates as to why they are asking for this information; and secondly, to ensure that they are well placed to demonstrate that they have not relied on this information in their assessment of the individual.

We would recommend the following as guidance:

1. Before interviewing the candidate, provide them with a job description along with sufficient information about the skills required to enable the candidate to make an informed decision as to whether they are likely to be able to do the job. If it is a manual job, for example, which requires lifting and climbing, let them know.
 
2. As suggested by the EHRC in their guidance notes on the Act, if the employer asks a candidate a question to see if any adjustments are needed for the interview, they should do this on a separate document and not on the application form itself. The EHRC recommends that the employer then keeps this information separate from the rest of the application process, and particularly from the people carrying out the interview (assuming that the organisation is large enough). In this way, it should be easier to defend any assertion that the employer relied on the information if the applicant was rejected.

3. Avoid unnecessary, superfluous, or even worse, personal questions that will not assist in establishing whether or not the candidate is able to carry out the work. Questions about, for example, age, trade union membership and marital status crop up every now and again but in reality, you probably do not need this information. Keep questions targeted to the requirements and needs  of the job and how the candidate can meet them. This will also assist in defeating other potential claims of discrimination.

4. Build objectively justifiable criteria into the recruitment process. Tests that measure skills and abilities which are needed for the job are a useful way of achieving this.

For further information contact Amanda Okill on 01227 763939.

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