One of the most talked about changes to be introduced by the Equality Act 2010, which was not in the original draft, but was introduced following pressure during consultation, is the ban on the use of pre-employment health questionnaires except in very limited circumstances.
Q So what does the Act actually say about pre-employment health questionnaires?
A In a nutshell, an organisation that receives an application for work can not ask about the health of the applicant before work is actually offered, unless specific criteria are met.
Q Why does the Act ban pre-employment health questionnaires?
A To eliminate the potential for discrimination at the application stage where it was felt that all too often unjust assessments were made based on disclosed medical conditions (especially mental health conditions) that unfairly prevented suitable applicants progressing to interview. The Act also aims to encourage those with health conditions to apply for jobs (whereas they may have previously been put off from doing so by pre-employment health questionnaires).
Q Can pre-employment health questions be asked at all?
A Yes, but only in limited circumstances. The questions must be asked with a view to establishing whether or not the applicant will be able to 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 that requires manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer may ask the applicant questions about their health to establish whether or not they are able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until they were offered the job. It will also be possible to ask whether an applicant has a disability that would require reasonable adjustments to be made to the recruitment process. The example given by the explanatory notes is of an applicant who discloses a speech impairment and asks for the adjustment of more time being allowed for the interview.
Q How should pre-employment questions be phrased under the Act?
A Unfortunately this is still not clear and the explanatory notes are of little help. Using the example from the explanatory notes, suggested approaches vary from the narrow approach of asking a specific question (eg, “Do you have a medical condition that will prevent you from lifting heavy objects?”) to a much wider approach of sending an applicant a long list of medical conditions that might prevent heavy lifting. Given the uncertainty employers should take a cautious approach by reviewing the core duties of the job on offer and focusing the questions accordingly. Once again, the Government has left a possibly contentious issue to be decided by case law.
Q What are the risks if inappropriate pre-employment health questions are asked?
A If inappropriate questions are asked (ie, questions about an applicant’s health that are not permitted by the Act) and an unsuccessful applicant brings a direct disability discrimination claim, the onus will be on the employer to show that no discrimination took place. The Equality and Human Rights Commission may also investigate if inappropriate questions are being asked and take enforcement action.
Q What do I do if I offer a job but a subsequent condition is revealed that means the candidate is unable to perform the job?
A Once a job has been offered and accepted employers may, if they wish, ask additional medical questions (although care still needs to taken with how that information is used). If a condition is revealed that causes the candidate problems in performing the job then reasonable adjustments must be considered. If there are no reasonable adjustments then the job offer may need to be withdrawn. There is clearly scope for claims here, so any adjustments must be very carefully considered. If none are viable the employer must have an objective business reason to withdraw the role.
Paul Gaff, Partner, Thomas Eggar LLP