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