Legal perspective on pre-employment health questions

Employers can no longer ask applicants pre-employment health questions. Anne Pritam and Beth Hale explain.

The Equality Act 2010 came into force on 1 October 2010. While it is largely a consolidation of existing law, it does include some significant changes. In particular, the Act includes a general prohibition on employers asking pre-employment health questions. There are several exceptions to the prohibition and it remains to be seen exactly how it will work in practice as the provisions leave some scope for interpretation by courts and tribunals. What is clear, however, is that the new provisions are likely to have a significant impact on the role of OH professionals in the recruitment process.

In this article, we consider some of the key issues surrounding the Act, focusing on how OH professionals can ensure compliance and how it might affect confidentiality obligations.

Background

The provision prohibiting pre-employment health questions was inserted into the Equality Act at a fairly late stage of its progress through Parliament. It was ­included following significant pressure from disability pressure groups, which maintain that the area in which discrim-ination is most common (as well as being hardest to detect) is during the recruit-ment process. It was felt that employers often made unfair decisions on recruit-ment on the basis of health issues disclosed at an early stage, particularly in relation to mental health. According to RADAR, the Disability Network, the regulation of pre-employment medical questionnaires would probably be “the single biggest difference and improvement that could be made” for disability rights through the new equality legislation. The provisions took various forms as they passed through Parliament, but the final version, which came into force on 1 October, is broader than many had anticipated.

Prohibition

Section 60 of the Act provides that, other than in certain circumstances, employers must not ask about the health of job applicants before making a job offer.

This means that employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking OH professionals to get involved in assessing an employee’s health or fitness until a job offer has been made, other than where a specific exception applies.

This “freestanding” legal requirement has a complex interface with discrimination law.

Asking prohibited questions will not, in and of itself, amount to discrimination against a job applicant. However, if inappropriate questions are asked, the burden of proof will fall on the employer to show that no discrimination took place as a result or that the candidate was rejected because of the consequences of a disability rather than because of the disability itself. The former might be justifiable, the latter is not. In addition, the Equality and Human Rights Commission may independently investigate and take enforcement action against employers that are in breach. This is most likely to happen to persistent offenders.

Adjustments during the application process

Employers are permitted to ask questions about health if it is necessary to do so in order to establish whether or not any adjustments need to be made during the recruitment process. For example, do any special access arrangements need to be made for an applicant to attend an interview? If applicants have to carry out any kind of assessment as part of the recruitment process, do particular ­allowances or arrangements have to be made to ensure that a candidate is not put at a disadvantage?

Ideally, information in this regard should not be requested at the initial application stage and should be sought only once a candidate has been selected to attend for interview. Candidates should be asked if there are any adjustments required, not whether or not they have a disability. When the information is requested, ­employers should try to ensure that the information is not made available to the people making the recruitment decision. Clearly, in some circumstances this will simply not be practicable (for example, if a candidate uses a wheelchair or has another readily apparent condition). In such cases, ­employers must be careful not to let the knowledge of the fact that an applicant needs adjustments influence the recruitment decision.

Employers will need to remember that this exception applies only where the questions asked are “necessary” for establishing if adjustments must be made. If there are no particular issues involved in the ­recruitment process, it may simply be ­unnecessary to make enquiries about ­adjustments at this stage. Employers may look to OH to advise on this.

Monitoring diversity

Employers can still ask questions about ­applicants’ disabilities to monitor the diversity of their workforce. Diversity monitoring forms should be kept separate from other recruitment documents and should ideally not be made available to any decision-makers in the recruitment process.

It is acceptable to ask if the candidate can perform functions that are intrinsic to the role. The exception that is likely to be relied upon most heavily is the provision that ­allows employers to ask pre-employment health questions that are “necessary” to ­establish whether or not a candidate “will be able to carry out a function which is intrinsic to the work concerned”.

The obvious question surrounds the meaning of the words “necessary” and “intrinsic”. When does an important part of a job become intrinsic? And when is it actually necessary to ask questions? Unhelpfully, the legislation does not provide answers to these questions and, ­although some official guidance has been published, this is likely to be the subject of a large amount of litigation. This is an area where employers and OH advisers can usefully work together to determine an appropriate approach in relation to particular roles. OH professionals can assist employers in establishing the key duties for a ­particular role and targeting appropriate questions accordingly.

In most office-based jobs, the functions that are truly intrinsic to the role are likely to be few and far between. For example, in a secretarial role ­applicants would need to have secretarial skills (typing, word processing, etc). Establishing candidates’ ability to carry out those parts of the role need not involve asking health questions. Employers can ask individuals to carry out typing tests (subject to any reasonable adjustments being made, for example, adjustments to speed requirements for RSI sufferers), provide certificates as evidence of qualifications and ask for references from previous employers to ­establish their suitability for the role. If a candidate can get through a selection process in this way, it is fair to assume that any disability for which reasonable adjustments might need to be made will not prevent him/her from carrying out the role and it would be unnecessary for employers to ask health questions.

If, on the other hand, a candidate is ­applying for a job on a building site in which it is necessary to climb onto scaffolding, an employer may consider it necessary to ask a candidate whether he/she has any condition that would hinder such activity. The issue then becomes – how can an employer most safely frame the question? Should they ask “Do you have any problems that would prevent you from climbing scaffolding?” or should they ask about a number of specific conditions that they are aware may affect his/her ability to carry out the role?

The guidance to the Act indicates that, even in this kind of situation, the employer should focus on the relevant skills rather than a possible disability – for example, by asking candidates whether they have experience of climbing scaffolding in previous jobs rather than by focusing on health issues that may prevent them from doing so. While this seems an over-cautious approach and the guidance is not actually binding, it may provide some insight into the approach that tribunals will take.

As a rule, questions about current health are much more likely to be considered “necessary” than questions about past health. Employers should avoid asking questions that start with: “Have you ever suffered from…”

Conditional job offers

Employers are still permitted to make job offers conditional on satisfactory health checks. Therefore, employers may still ask health-related questions and require ­employees to undergo medical checks once a job has been offered.

However, care should still be taken in relation to how any information obtained is used. Employers should consider carefully why they are asking each question and what they will do with the information they receive. If questions or a medical check ­reveal a condition that will affect an individual’s ability to carry out the role for which he/she has been recruited, the employer will need to consider reasonable adjustments. This may require cooperation between the employer and OH, including discussions around how certain adjustments will assist the individual.

If there are no reasonable adjustments that can be made, it is possible for the ­employer to withdraw the job offer. Withdrawing an offer should always be an absolute last resort and employers should give careful consideration, in discussion with OH, to possible adjustments to accommodate the individual and/or avoid claims.

Confidentiality of information

The Act has not made any change to the previous position in relation to confidentiality of patient information between OH advisers and the employer. OH will not ­often be involved at the early stages of ­recruitment under the new provisions, and may not have been in the past in some organisations. However, given the ­additional protection available to disabled employees under the Act, employers should be turning to OH for fuller advice during the later stages of the recruitment process more regularly.

Following the case of Hartman v South Essex Mental Health and Community Care NHS Trust, employers will not always be deemed to know everything that an OH adviser knows about a particular employee. It may, in some circumstances, be appropriate for OH to inform the employer of ­information discovered during a pre-employment assessment, for example where there are serious health and safety risks ­involved in the employer not being aware of a particular condition. To protect professional credibility, OH advisers should always make it clear to employees that information provided may be passed on to the employer in certain circumstances.

Anne Pritam is a partner and Beth Hale an associate in the employment practice of international law firm Stephenson Harwood.

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