Employers who use pre-employment health questionnaires should review their procedures in the light of a change being introduced on 1 October by the Equality Act 2010. Section 60 of the Act prohibits the use of such questionnaires prior to a job offer being made. This includes prohibiting their use before selecting a pool of applicants from whom the successful candidate will be chosen.
Employers are not prevented from asking job applicants any questions about their health but can only do so for the purpose of:
- deciding whether they need to make any reasonable adjustments to enable an applicant to participate in the selection process;
- deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned;
- monitoring diversity amongst those applying for jobs;
- taking positive action to assist disabled applicants; and
- establishing whether the applicant has a disability where this is a genuine requirement of the job.
It will be important to make clear why a particular question is being asked and how the information will be used.
Once a person has been offered a job, whether this is an unconditional or a conditional offer, the employer is permitted to ask appropriate health-related questions and require a medical assessment where this is normal practice for all applicants.
If a candidate thinks a prospective employer has acted unlawfully by asking questions that are prohibited, he or she can make a complaint to the Equality and Human Rights Commission (EHRC). The EHRC will have the power to investigate and take enforcement action where necessary. A serious breach could result in a fine of up to £5,000.
If an employer uses a pre-employment health questionnaire, a disabled job applicant who is unsuccessful may bring a claim of disability discrimination, using the questionnaire as evidence in support of his or her claim. It will then be up to the employer to prove that there was a non-discriminatory reason for not offering that person the job.
