Under the Equality Act 2010, employers are prevented from asking potential recruits questions about their health before a job offer is made, with some exceptions. This means that employers need to be careful about the questions they ask during the recruitment process in order to avoid liability for disability discrimination. Employment lawyer Kate Barker looks at what this means for employers in practice.
Q What health questions can't I ask?
Section 60 of the Equality Act 2010 prevents employers from asking about the health of an applicant before making a job offer, or before including the applicant in a selection pool, with some exceptions (see below). Therefore you usually won't be able to ask health questions until a job offer has been made. Whether or not an applicant has a disability is deemed to be a question about their health.
Q What happens if the applicant raises health issues?
Even if an applicant voluntarily discloses information about their health or disability during an interview, you must be careful not to ask any questions in response unless they fall within the permitted exceptions (see below). If the candidate attempts to discuss reasonable adjustments that they may need to do the job, you should tell them that this is something that will be discussed with the successful applicant once the job offer has been made.
Q What are the consequences if I ask about a candidate's health?
Asking questions about an applicant's health will not in itself be an act of discrimination. However, where an employer asks a prohibited question and then rejects the applicant, this will result in a shift in the burden of proof to the employer if the employee subsequently brings a direct disability discrimination claim. This means that the employer will have to prove that no discrimination took place, otherwise the claim will succeed. Also, if the employer is in breach, the Equality and Human Rights Commission can take enforcement action.
Q I need to make sure that the applicant is capable of performing the role - what can I do?
Section 60 allows pre-employment health enquiries for certain specified reasons. Perhaps the most useful of these is where the questions are necessary to establish whether the applicant can carry out a function that is intrinsic to the work concerned. The Explanatory Notes to the Act give the example of an applicant who applies for a job in a warehouse, which requires heavy lifting. As heavy lifting is an intrinsic function of the job, the employer is permitted to ask questions about the applicant's health to establish whether or not they are able to do the job (with reasonable adjustments for a disabled applicant, if required).
However, employers should exercise caution as this exception is narrowly drafted. You should therefore only ask questions that relate to the applicant's ability to perform the core duties of the role. In addition, you should restrict your questions to those that are necessary, for example by asking whether the applicant suffers from any health problems that might prevent them from performing the particular function in question, rather than sending them a general medical questionnaire.
Q How do I find out if a candidate needs adjustments for an interview or assessment?
Employers can also make health enquiries to find out whether or not reasonable adjustments may need to be made to the assessment process, for example to allow an applicant with a speech impairment more time at interview. However, questions about reasonable adjustments needed for the job itself should not be asked until the job offer has been made (see below).
Q Can I still make the job offer conditional upon a satisfactory health check or medical questionnaire?
Yes, it is still possible to make job offers conditional upon satisfactory health checks or medical questionnaires. However, if you decide to withdraw the offer as a result, you need to ensure you are not discriminating against the applicant. If the applicant could have a disability, it will be dangerous to withdraw the offer unless it is clear that the health issues identified mean that the applicant would be unable to carry out the role after any reasonable adjustments have been made.
Kate Barker is a senior associate in the employment team at Hogan Lovells