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.