With a few necessary exceptions the Equality Act 2010 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant’s health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. Also merely asking the question may give the Equality and Human Rights Commission power to investigate and issue an “unlawful act notice”.
The common practice of asking job applicants to complete a health questionnaire as part of the job interview process is thus now generally dangerous and is to be deprecated.
There are 3 points to make in connection with the above:
- this provision does not apply once an offer of work has been made. Making an offer of work subject to a satisfactory medical is therefore perfectly in order;
- in practice the provision is unlikely to make much difference to the eventual outcome of most cases which go as far as an employment tribunal. The Equality Act 2010 shifts the burden of proof to the prospective employer to disprove discrimination if an unsuccessful job applicant makes a complaint to an employment tribunal that his job application was rejected because of a reply to a “pre-job offer” health related question. However in practice, in the vast majority of cases under previous law, it is likely that a tribunal would have come to the same ultimate conclusion;
- the Equality Act 2010 specifies five situations when it is in order for a prospective employer to ask health related questions of a prospective employee. These are essentially where:
(a) questions are asked to ascertain whether any reasonable adjustments will have to be made to enable the job applicant to attend an interview;
(b) questions are asked to establish whether the job applicant will be able to carry out a function that is intrinsic to the work concerned;
(c) questions are asked for “monitoring diversity in the range of persons” applying to the employer for work;
(d) positive action is to be taken, where that is allowed (see the next newsletter blog post);
(e) having a particular disability is an occupational requirement for the job, provided that is a proportionate means of achieving a legitimate aim.
This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.
