I have vacancies for positions in my warehouse and am currently recruiting. I normally ask candidates about their health prior to making a decision on whether or not to take them on – can I still do this under the Equality Act 2010?
One of the issues which the Equality Act hopes to address is the problems employees with a history of health problems face in obtaining employment. It has done this by abolishing a “one size fits all” approach from employers that send out questionnaires on general health and medication issues with application forms.
The Act therefore makes it unlawful for an employer, or an agent acting on behalf of the employer, to ask any job applicant questions about their health or a disability until the applicant has either been offered the job or been put in a pool of successful candidates for a role. This means the employer is not allowed to ask any questions about health or a disability on an application form or during the interview process. It also means that an employer cannot refer job applicants to an occupational health advisor or ask them to fill in a health questionnaire prior to being offered the job.
However, there are exceptions to this rule which mean that, in specific situations, such questions are permissible and will not be unlawful. One of the main exceptions is where such questions are necessary to establish whether or not the job applicant will be able to carry out a function which is intrinsic to the work concerned. Presumably in this case the warehouse role involves manual labour, such as lifting and handling heavy items. If these are intrinsic functions of the role then, as a result of this exception, you will be able to ask job applicants questions about their health to find out if they are able to do the job.
You need to take care, however, to focus only on functions which are necessary to do the job, and to limit your questions to these functions. For example, in this case, questions should be limited to an applicant’s ability to lift and handle items, or questions which would establish whether or not the applicant could do these functions with reasonable adjustments in place. Failure to do so could lead to action against you from the Equality and Human Rights Commission, or a claim for unlawful discrimination if the applicant feels that they have been unsuccessful based on a disability.
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Sarah Clayton, employment partner, Heatons LLP
