Once the act’s in force, application forms containing medical questions can only be used where they are relevant to the role or to help disabled candidates get jobs
Most of the Equality Act 2010 is due to come into force on 1 October 2010, including section 60: prohibiting the use of pre-employment health questionnaires before a job offer is made.
This provision is intended to protect disabled job applicants from discrimination during the recruitment process. Employers will no longer be able to adopt a “one size fits all” approach and send
out questionnaires containing questions about general health and medication issues with application forms. And they won’t be able to require applicants to have a medical assessment before making a
job offer either.
Restrictions
Employers will only be able ask health-related questions to help them:
- establish whether any reasonable adjustments need to be made for applicants during the selection process;
- decide whether an applicant can carry out a function essential to the job. For example, if the job entails heavy manual handling, an employer can ask candidates whether they could manage this. However, questions asking applicants how an impairment would affect them getting into the workplace are prohibited;
- monitor diversity among job applicants;
- take positive action to assist disabled people. Employers that want to improve disabled candidates’ chances of being selected for a vacancy, for example, are allowed to guarantee them an interview, and they can ask on the application form if the applicant has a disability for this purpose. But they must make it clear on the form why they’re asking the question; or
- establish whether a job candidate has a disability where the role requires the employee to have a particular disability.
It is unclear from the current guidance what specific health questions employers can ask before a job is offered and whether such questions will always be necessary. It may be that we will have to wait for litigation for more clarity on this.
Complaints
Applicants who think an employer is acting unlawfully by asking prohibited questions can complain to the Equality and Human Rights Commission (EHRC), but they
cannot take the employer to an employment tribunal. Organisations found guilty or suspected of discrimination may be investigated by the EHRC, which can require the employer to draw up an action
plan and could potentially fine the organisation up to a maximum of £5,000.
Claims
Employers using pre-employment health questionnaires run the risk of the forms being used as evidence of discrimination. Employers could potentially face disability
discrimination tribunal claims if a disabled applicant is not selected for a role. The burden of proof will fall to the employer to prove discrimination did not take place.
Policy and practice
Employers will need to revise their recruitment policies prior to 1 October 2010 and tailor pre-employment health questionnaires so they only include
questions that cover conditions and disabilities relevant to the job specification, or are only used if the employer wishes to increase the number of disabled employees in the workforce.
An employer will be able to ask generic health questions once a job offer has been made, maybe requiring applicants to undergo a medical assessment, and make a job offer conditional on it. If a job offer has been made and an employer finds out that the applicant is not fit for the role, the organisation can either make reasonable adjustments so the person can do the job or withdraw the offer of employment if there is justification for doing so.
