Equality Act now in force
Earlier this year we told you about plans for new legislation in the area of disability and discrimination. Our fear was that it would lead to pre-employment health questions being banned. So were our concerns well founded?
Unfortunately, yes they were!
As we predicted earlier in the year, the Equality Act 2010 came into force on October 1 2010 (yr.8, iss.13, pg.3, see The next step). It replaces various pieces of discrimination legislation, such as the Disability Discrimination Act 1995. And, as we anticipated, the Act includes a new provision (in section 60), which makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work.
Why has this been brought in?
Although existing law already made it illegal to discriminate on grounds of disability, it was felt that employers were able to use the results of pre-employment medical screening to avoid employing those with existing mental or physical health issues. It was hard for a candidate to prove that they had been treated unfairly.
Safety benefits
The value of undertaking pre-employment checks from a health and safety perspective was that you could identify candidates who would be at risk, or put others at risk, if accepted to a particular role. You could also establish if any adjustments to the workplace or work activities were needed to make them safe for an individual with a disability. Both of these goals can be accommodated under the new regime, but require a new approach.
How do you do it?
Other than in extremely limited circumstances, you now have to wait until after you’ve made an offer of employment to ask medical questions.
Tip 1. After you’ve made a job offer you can ask health questions unhindered. Medical confidentiality rules still apply, so you should do this via an independent occupational health provider.
Tip 2. You now need to use a “medical questionnaire” document, instead of a pre-employment one (see The next step).
Tip 3. If the outcome of the post-job-offer health assessment is that the individual’s health issues might affect their ability to do the job safely and effectively, you need to consider what “reasonable adjustments” can be made. If it isn’t possible to make the job safe through reasonable adjustments, then you can withdraw the job offer.
Tip 4. If the job involves heavy lifting, work at height or work with certain chemicals etc., and those aspects are an essential part of the job (and can’t be avoided by making reasonable adjustments to the work), it’s permissible to ask specific and relevant health questions at the application stage.
Tip 5. You’re not permitted to ask a candidate how their disability might affect them getting to work, as that isn’t regarded as intrinsic to the job.
Tip 6. Keep good notes, and take advice from an HR professional if you decide that you need to ask specific health questions before offering work, or if you need to withdraw a job offer. You’ll need very good evidence to prove that you didn’t discriminate.
For a previous article (HS 09.02.03A) and a free sample medical questionnaire (HS 09.02.03B), visit http://healthandsafety.indicator.co.uk.
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