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Getting round tricky legislation

30 November 2010

Now the Equality Act has banned pre-employment health questionnaires…

One of the most controversial changes to the Equality Act 2010 is the section which prevents an employer from asking questions about the health of a job applicant.

The act states that an employer’s reliance on information divulged in a pre-employment health questionnaire may be a contravention of a relevant disability provision which could entitle the applicant to bring proceedings before an employment tribunal.

For many companies these health questionnaires are an integral part of the recruitment process so where does that leave employers?

Kent employment lawyer Amanda Okill, associate at leading regional law firm Furley Page and personally recommended by independent legal guide Chambers UK, says there are ways to get the information you need.

She comments: “For a start there are limited exceptions where it’s permissible to ask about the health of a candidate before offering them work. These include finding out whether they are able to carry out a function intrinsic to the job or establishing if adjustments are needed for the interview process.

“The key, however, if you do opt to ask any health questions within these limitations is to make sure you are in a strong position to demonstrate that you haven’t relied on information in the questionnaire in your assessment of the applicant’s abilities.“

Amanda’s advice at the pre-employment stage is clear:

First, provide the candidate with a brief job description along with the application form so they can make up their own minds whether they are able to do it.

Second – and this is endorsed by the Equality and Human Rights Commission (EHRC) – you could ask a candidate a question to see if any adjustments are needed for the interview itself and provide details of the interview to help them decide if this would be necessary. Do this on a separate document rather than the application form itself. If the organisation is large enough, keep this information away from the interviewers.

In the application form and at the interview keep your questions focused on the requirements of the job and try to avoid asking unnecessary, superfluous or personal questions such as age, trade union membership and marital status.

Finally, build objectively justifiable criteria into the recruitment process. You could introduce tests which measure skills and abilities so it will strengthen your case if you ever have to justify your final choice.

For further information on the Equality Act contact Amanda Okill on 01227 763939.
 

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