Equality Act: Employers warned against using pre-employment health questionnaires

Employers are being urged to withdraw pre-employment health questionnaires ahead of the introduction of the Equality Act or risk falling foul of the law.

The warning follows a poll by law firm Pannone which revealed that two-thirds of employers ask candidates pre-employment health questions as a matter of course.

The survey of more than 100 HR directors and senior managers also found that half requested that candidates fill in health questionnaires before a formal job offer is made. In addition, 18% said they only asked questions that were specific to the particular role, while 82% asked generic questions.

The Equality Act, which comes into force in October, will prohibit employers from asking candidates pre-employment health questions other than in limited circumstances, one of which is to check a candidate can perform an “intrinsic function” of the job, for example heavy lifting.

Earlier in July, the Government confirmed that the first wave of the Act will be implemented in October, including the abolition of pre-employment health questions, a provision designed to reduce disability discrimination in the recruitment process. Employers will only be able to ask health questions upon job offer.

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Jim Lister, head of employment law at Pannone, said it was likely that questions about a candidate’s previous sickness record may also fall foul of the law. “The penalties for employers include investigation by the Equality and Human Rights Commission and the reversal of the burden of proof, meaning that the employer will be assumed to have discriminated, unless it can show there was another reason for non-selection,” he said.

“Therefore it is essential employers urgently review any pre-employment questions and, unless they are job specific or otherwise exempt, withdraw them before the Equality Act comes into force.”