Pre-employment health questionnaire ban could lead to probationary dismissals

Employers could be tempted to use a worker’s probationary period to remove new starters with health issues from the company if they find out about a medical condition after an offer of employment has been made, HR chiefs have admitted.

The warning comes as several HR chiefs have backlashed against the move to ban pre-employment health questionnaires, saying it would take longer to make any ‘reasonable adjustments’ necessary, leaving them open to tribunal claims.

Last week, the House of Lords accepted an amendment to the Equality Bill, which – if also accepted by the House of Commons – would prevent employers from asking candidates questions about their health unless it specifically related to the job role.

Equality campaigners and charities representing those with health conditions have long argued that employers discriminate against applicants with health conditions, rejecting them from the recruitment process without any consequences.

While many HR professionals have backed the move to ban pre-employment health questionnaires,  others have expressed concern it would do little to change attitudes in practice.

Susan Campbell, head of HR and development at utilities company Business Stream, told Personnel Today: “If a firm employs someone and finds out they have a disability after week three, there is nothing to say they can’t get rid of them in the probationary period. Employers will find a way of dealing with people.”

Fenton Grey, group HR director at the Phonebook Directory, said: “Employers want to know [about any  health issues] up front – it can help them plan ahead and it helps them to judge if the person would be able to do the job.”

He added: “If you have a visible disability, employers will notice straight away. If the employer sees the disability, they could make a snap decision and not hire you because they can’t ask [about the condition].”

Jeya Thiruchelvam, employment law editor at XpertHR, confirmed employers would be expected to make adjustments “within a reasonable timescale”.

Although there is no fixed timetable set out in law, as it depends on the circumstances of each case, if employers took an ‘unreasonable’ amount of time to make adjustments, they could face claims for disability discrimination.

She said: “The employer would need to justify the delay and would be exposed in relation to any period during which a delay could not be justified, and would also be potentially vulnerable to claims of disability-related discrimination.”

Gillian Williams, head of HR at management solutions firm GB Group, warned that if an employer only realised the new recruit was not able to perform the role because of a disability after they had been hired, the worker would have to be sacked.

“We do pre-employment screening and the whole point is so you can make reasonable adjustments,” she said. “If they can’t do the job and you found out later, the employer would have to dismiss them. It would be costly for the employer and time consuming, and not fair for the employee either.”

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