The Equality 2010 (the “Act”), which came into force on 1 October 2010, places new restrictions on the type and timing of pre-employment health-related questions that employers may ask job applicants. Only a limited type of question can now be put at any pre-offer stage, which means that all employers should review their standard pre-offer recruitment processes for compliance.
WHEN DO THE RESTRICTIONS APPLY?
Section 60 of the Act prohibits an employer (A) from asking a job applicant (B) questions about his/her health (other than certain limited permitted enquiries explained below):
(1) before offering work to B; or
(2) where A is “not in a position to offer work” to B, before including B in a pool of applicants, from whom A intends to select a person to whom to offer work.
The first restriction only applies before the offer; it does not prevent the making of a conditional offer where the condition relates to health, for example, a job offer conditional upon an employee then completing a pre-employment health questionnaire or passing a pre-employment health check.
The second restriction appears to be designed to cover a specific situation in which job applications might otherwise be screened out on health grounds on a preliminary basis, leaving a pool of applicants who proceed to assessment stage.
WHAT TYPES OF ENQUIRES ARE PERMITTED?
Section 60 also sets out the limited exceptions to the rule. Health-related enquiries are permissible pre-offer only for the purposes of:
establishing whether a job applicant will be able to participate in a required assessment (i.e. an interview or other process) to test their suitability for the work;
establishing whether the employer is under a duty to make reasonable adjustments in conection with such an assessment;
establishing whether a job applicant will be able to undertake a function that is intrinsic to the job (with reasonable adjustments in place if required);
monitoring diversity in applications for jobs;
taking positive action in employment for people with disabilities where legally permitted; and
enabling an employer to identify suitable candidates for a job where there is a genuine occupational requirement for the person to have a particular disability.
CONSEQUENCES OF FAILURE TO COMPLY
A breach of section 60 may be enforced directly only by the Equality and Human Rights Commission. We expect this to be rare.
However, employers should be aware that a breach of section 60 – asking an impermissible question at pre-offer stage - has serious consequences if an unsuccessful job applicant with a disability who has been asked an impermissible health question, and asserts that the employer relied on the answer in rejecting him or her, then brings a direct disability discrimination claim. The employer will “have the burden of proof”, meaning that he will be required to show that the disability in no way affected the decision.
ADVICE FOR EMPLOYERS
When these provisions were originally proposed, it was suggested that employers would no longer be able to use pre-employment medical questionnaires. This is not the case. Section 60 of the Act merely prevents employers from screening potential applicants on the basis of their health, unless the enquiry is made for one of the prescribed reasons. A questionnaire can still be used both before and after offer but the questions and the use of the answers must now be more tightly focused. Note that a decision can still be made not to take an applicant further if permissible questions establish that even a reasonable adjustment would not enable the applicant to undertake a function which is intrinsic to the job.
Nothing in the Act prevents an employer from insisting upon a pre-employment health check after a job has been offered (but before they start) or, according to the explanatory notes to the Act, as a pre-condition to employment. Of course, as now, disability discrimination must be avoided.
Now is therefore an important juncture to review what sort of health-related questions are asked, when they are asked, and why.
Employers should be clear about the very limited permissible reasons for asking health questions at the pre-interview and interview stages of recruitment and should endeavour to ensure that further health-related enquiries are not made before a job offer is made.
Where permissible pre-employment health enquiries are made, employers should, as always, ensure that records are kept regarding recruitment decisions and, in particular, the reason why a particular applicant has been unsuccessful.