Disabilityby Kate Russell
Pre-employment medical questions
One of the most contentious parts of The Equality Act 2010 is the introduction of a ban on the use of pre-employment health questionnaires except in very limited circumstances. The aim is to reduce the potential for discrimination at the application stage, where it was felt that all too often unjust assessments were made based on disclosed medical conditions (especially mental health conditions) that unfairly prevented suitable applicants progressing to interview.
An employer cannot ask about the health of the applicant before work is actually offered, unless specific criteria are met.
- Pre-employment health questions can be asked, but only in limited circumstances. These include
- The employer needs to establish whether the employee is fit to undergo an assessment, or whether the employer has a duty to make reasonable adjustments in connection with an assessment
- The employer needs to establish whether the job applicant will be able to carry out a function that is intrinsic to the job concerned
- The employer wishes to undertake diversity monitoring
- The employer is considering taking positive action in relation to disabled persons
- It is a genuine requirement of the job that the employee has a particular disability.
The questions must be asked with a view to establishing whether or not the applicant will be able to carry out a function that is intrinsic to the work concerned. The explanatory notes to the act give the example of an applicant who applies for a warehouse job that requires manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer may ask the applicant questions about their health to establish whether or not they are 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 they were offered the job. It will also be possible to ask whether an applicant has a disability that would require reasonable adjustments to be made to the recruitment process. The example given by the explanatory notes is of an applicant who discloses a speech impairment and asks for the adjustment of more time being allowed for the interview.
At the time of writing, it isn’t clear how pre-employment questions should be phrased under the act and the explanatory notes give little help. Using the example from the explanatory notes, suggested approaches vary from the narrow approach of asking a specific question (for example, ‘Do you have a medical condition that will prevent you from lifting heavy objects?’) to a much wider approach of sending an applicant a long list of medical conditions that might prevent heavy lifting. Given the uncertainty, employers should take a cautious approach by reviewing the core duties of the job on offer and focusing the questions accordingly. We will have to wait until this type of issue has been decided by case law.
If an employer asks inappropriate pre-employment questions and an unsuccessful applicant brings a direct disability discrimination claim, the onus will be on the employer to show that no discrimination took place. The Equality and Human Rights Commission may also investigate if inappropriate questions are being asked and take enforcement action.
Once a job has been offered and accepted, the employer may ask additional medical questions (although you will still need to take care how that information is used). If a condition is revealed that causes the candidate problems in performing the job, then you must consider making reasonable adjustments. If there are no reasonable adjustments, then the job offer may need to be withdrawn. There is clearly scope for claims here, so any adjustments must be very carefully considered. If none are viable, the employer must have an objective business reason to withdraw the role.