Asking health questions of job applicants

It used to be standard practice for many employers to ask job applicants to complete searching health questionnaires prior to appointment.

The Equality Act, which came into force on 1st October 2010, contains a prohibition on asking about the health of a job applicant before making a job offer. The idea is that health issues should not be allowed to influence the decision as to whether a candidate should be offered a job. There is no prohibition on asking about health after a job offer has been made.

Although asking a health question is not itself a breach of the Equality Act, it may contravene the Disability Discrimination provisions of the Act to subsequently rely on any information given in response to such a question.

Does this mean that applicants for driving or indeed flying jobs can’t be asked about their eyesight prior to appointment? Or that applicants with obvious disabilities can’t be asked about what reasonable adjustments the employer would need to make it they were appointed?

No. The Equality Act contains a number of exceptions to the rule about health questions. So for example it is not a breach of the prohibition for an employer to ask health questions where it is necessary to do so for the purpose of:

(1) establishing whether the employer would have a duty (under the Disability Discrimination provisions of the Act) to make reasonable adjustments for the applicant or

(2) establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned.

These two exceptions are very wide, and should enable employers to ask applicants about most health and disability issues in which they have a legitimate interest prior to making a job offer. It will of course be important to frame questions properly.

Clearly, it is necessary for all employers to review their recruitment procedures to ensure compliance with the Equality Act. In many cases recruitment documentation will need to be amended. In all cases, careful consideration will need to be given to the approach to be taken in interviews.

Discrimination on grounds of Belief

Life for employers has become more difficult following the recent case of Grainger plc v Nicholson.

The case has confirmed that a potentially huge but unidentifiable class of people will now enjoy protection from discrimination under the Employment Equality (Religion or Belief) Regulations 2003.

The actual finding in Grainger plc v Nicholson is that the ‘Religion or Belief’ regulations protect Mr Nicholson against discrimination on the basis of his belief that mankind is heading towards catastrophic climate change and therefore people are under a moral duty to lead their lives in a manner which mitigates or avoids that catastrophe for the benefit of future generations, and to persuade others to do the same.

But the decision goes much further than that. Any belief will qualify for protection if it:

- is genuinely held
- is a belief and not an opinion or view based on the present state of information available
- is a belief as to a weighty and substantial aspect of human life
- has attained a certain level of cogency, seriousness, cohesion and importance
- is worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

So it is likely that the following would qualify for protection:

- Climate change
- Humanist
- Green
- Veganism
- Animal rights protester
- CND member.

And likely that these would not:

- Witchcraft
- Voodo.

The interesting category is the ‘maybe’ one, which probably includes:

- Political beliefs
- BNP?

Here is a link to the full judgment: Grainger pcl v Nicholson