Physical examinations of candidates: legal dilemma

Q We are recruiting a new sales director and I am keen to include both a physical and mental examination in the interview process. Can the applicants refuse and how would I need to document the findings and considerations if, for example, I decide not to hire a candidate with a bad medical record or a heart condition?

A The wish to conduct physical and mental examinations of your candidates is understandable, but raises certain legal issues, such as the duty to make reasonable adjustments under UK disability discrimination legislation.

Examinations intended to establish a candidate’s medical condition normally involve some form of occupational health assessment. Provided these are properly conducted in clinical terms, they should not put a potential candidate with a disability at the substantial disadvantage that would be necessary for this duty to arise. Greater care must be taken with the resulting report, as this will almost certainly form part of the arrangements for determining whether the candidate is offered employment.

Aptitude tests, whether physical or mental, should likewise be directed towards the central requirements of the job that either an employer cannot adjust or that would not be regarded as reasonable for the employer to adjust.

It is worth remembering that some disabilities will have a specific impact on a candidate’s ability to complete the test. Some candidates may, for example, struggle with a particular cognitive element; some adjustments may be as simple as allowing the candidate more time. The duty to make reasonable adjustments may alternatively be satisfied in how you assess the results of the tests by making specific allowances or applying a weighting to the results. Many employers consciously inquire about a candidate’s disabilities at the application stage so that the assessment stage can be devised or adjusted accordingly.

There is no particular magic to the way such a recruitment process should be documented generally; it is obviously important to supplement a written recruitment procedure with evidence of the adjustments made, and the legitimate reasons for preferring or rejecting a particular candidate. Thus, any candidate who refuses to undergo the examinations, who withdraws (as is their right), or is eliminated from further consideration will have a much greater difficulty claiming a breach of the duty to make reasonable adjustments.

In the light of these requirements, the simple rejection of a candidate for potential reasons such as a bad medical record or a heart condition would be liable to challenge.

Michael Berriman, partner, Weightmans

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