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Pre-employment health related questions checklist

Posted on 10th November 2010
HR practice

Your checklist to if and when pre-employment health questions can be asked under the Equality Act 2010.

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Simon Quantrill Simon
Quantrill
Managing Partner Telephone: 01473 688100

The basic rule is don't ask health related questions before making a job offer

  • The basic rule is don't ask health or medical related questions before making a job offer.
  • This rule applies to all job applicants, even if they are not disabled.
  • Questions must not be asked directly or via some other person, such as the job applicant's former employer by way of request for a reference; or via a recruitment agency.
  • Employers must review their recruitment processes.
  • Employers should decide if pre-job offer questions will be used and for what reason.
  • Working out what is "intrinsic" must be carefully considered and objectively justified.
  • Questions about an applicant's sickness absence will almost always be in breach of the new provisions because the EHRC Code states "questions relating to previous sickness absence are questions that relate to disability or health."
  • Make conditional job offers and then ask appropriate health questions. The EHRC Code states "job offers can be made conditional on satisfactory responses to pre-employment disability or health enquiries or satisfactory health checks." But employers must not discriminate against job applicants on the back of the answers to such enquiries or checks.
  • Be careful, questions about past health and levels of sick leave are likely to be unlawful.
  • When a disabled applicant voluntarily discloses information about his or her disability or health, employers are allowed to respond to the disclosure but can only ask questions which do not breach the above rules e.g. you may respond by asking further questions about reasonable adjustments that would be required to enable the person to carry out an intrinsic function of the job. 

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