RECRUITMENT - 03.11.2010

Questioning job applicants about their health?

Restricting your questions

Many employers ask job applicants about the state of their health. This is sometimes done by getting them to complete a pre-employment health questionnaire or during the interview itself. On October 1 the Equality Act 2010 came into force. According to media reports, it places an outright ban on all health-related questions. As usual, this isn’t quite the position - so what can and can’t you now do?

Pre-employment health questionnaire

The Act doesn’t prevent you asking about health or sickness absence full stop - that’s a myth. What it hinders is when you can ask that sort of question. As a general rule, you shouldn’t ask a job applicant anything about their health prior to making them an offer of employment, i.e. via a pre-employment health questionnaire.

Hidden dangers. If you do, and subsequently refuse to proceed with the application, the tribunal is automatically entitled to conclude that you’ve discriminated on the grounds of a disability, even if it wasn’t why you took that decision. It would then be for you to prove this wasn’t the case and that won’t always be easy.

Exceptions to the rule

However, prior to any offer of employment you can (and should) ask certain health-related questions to ensure that an applicant:

• can carry out a “function which is intrinsic”, i.e. integral, to the role, for example, they are able to undertake heavy lifting

• is able to fully participate in the selection process, i.e. are adjustments necessary during the interview so that they are not placed at any disadvantage?

• has a disability which is an occupational requirement for the job (if appropriate).

When can you ask about health?

Once you’ve made an applicant a job offer, the position changes - it can be conditional on the satisfactory outcome of answers to health-related questions, perhaps by the use of a medical questionnaire (see The next step), or by asking them to attend a medical examination. This operates in the same way as requesting satisfactory job references; if the outcome is poor you may want to withdraw the job offer.

Are there any risks here?

Whilst this is possible, it’s a risky approach. For example, rejecting an applicant with a high level of sickness absence may mean a disability discrimination claim. You would also need to consider reasonable adjustments before making this decision.

Tip 1. Although problematic,the position here is, in fact, no different than before the Act came in.

Tip 2. Always ask if adjustments are needed for an applicant to attend an interview - not doing so can also land you with a disability discrimination claim. But only ask specific health-related questions once you’ve made a job offer.

For a free sample medical questionnaire, visit http://personnel.indicator.co.uk(PS 12.20.05).