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Pre-employment health related questions outlawed under Equality Act 2010

Posted on 15th September 2010
HR practice

Many employers currently ask job applicants questions about their health and sickness record to help decide who to interview and employ. From 1 October 2010, section 60 of the Equality Act 2010 restricts an employer's ability to ask a job applicant questions about his or her health or disability before making a job offer. The restrictions also apply when deciding who to include in a short list of applicants from whom the employer intends to make a final selection to offer work.

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The restrictions do not apply if the questions about health and disability are "necessary" to:

  • help the employer decide whether it needs to make any reasonable adjustments to the selection process so that the job applicant can take part;
  • establish whether the job applicant is able to carry out a "function that is intrinsic to the work concerned" - i.e. essential;
  • monitor diversity among the job applicants;
  • take positive action to assist disabled people; or
  • make sure that a candidate has the disability where the job genuinely requires the job holder to have that disability (an exception which will be quite rare in practice!)
Once the job applicant has passed the interview stage, and the employer has made a conditional or unconditional job offer, they are allowed to ask appropriate health-related questions.

This new provision is not without its problems!

Job applicants cannot bring a free standing claim if an employer has asked health questions pre-employment. The Equality and Human Rights Commission will have powers to investigate breaches of this new restriction and to take enforcement action, even where no discrimination can be shown to have taken place.

During employment tribunal proceedings, asking health questions pre-employment will affect the burden of proof in direct discrimination cases. Where an unsuccessful job applicant brings a direct disability discrimination claim, the burden of proof will shift automatically to the employer to show that no discrimination took place. To avoid liability the employer will have to show that the specific disability was not the reason for rejecting the applicant, for example by showing that the applicant was rejected in favour of a candidate with more experience or better qualifications.

Employers will have to be careful about any questions they do ask before the job offer is made. This is because it is unclear how such questions should be worded if they are not to infringe the new provisions. At what point will a question go beyond what is "necessary" to establish, for example, whether the job applicant will be able to carry out an "intrinsic function"? And who decides what an "intrinsic function" is? It is not clear!

The Act's explanatory note gives a simple example: "An applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items. As manual handing is a function which is intrinsic to the job, the employer is permitted to ask the applicant about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job."

Without more detailed guidance, it is anticipated that case law will have to explain where the line rests between necessary and unnecessary questions.

Employer's check list | health questions

  • Employers should review recruitment processes.
  • Employers should decide if pre-job offer questions are still to be used and if so on what basis.
  • Working out what is "intrinsic" must be carefully considered and objectively justified.
  • Questions about past levels of sick leave are likely to be unlawful.
  • Make conditional job offers and then ask appropriate health questions. 

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