Pre Employment Health Questionnaires
Posted: Monday 17 January 2011
The Equality Act 2010 came into force on 1 October 2010. One of the most significant changes from a practical perspective is the effect of the Act upon employers’ ability to ask prospective employees questions about their health.
Background
The Act provides that employers can no longer ask questions about the health of a prospective employee prior to offering that individual work, subject to certain specific exceptions. If an employer continues to issue employees with questions about their health, and they cannot show that the question falls within one of the exceptions, then the business may find itself being investigated by the Equality and Human Rights Commission. In addition, if a disabled applicant who has been asked questions about his health at the application stage is rejected for a post and raises a direct disability discrimination claim, then the Tribunal will be entitled to draw an inference of disability discrimination. This means that the burden of proof is shifted to the employer and the employer will then need to prove that the candidate’s rejection was for a non-discriminatory reason unrelated to their response to the health questionnaire. This may be difficult.
Exceptions
The main exceptions to the ban on pre-employment health questions are questions which are necessary to:
- establish whether the prospective employee will be able to undergo the interview/assessment and whether any reasonable adjustments are required in that regard;
- establish whether the prospective employee will be able to carry out a function that is intrinsic to the work;
- monitor diversity; or
- take positive action.
From 1 October it is therefore unlawful to continue to ask questions about the individual’s general health. It is also likely to be unlawful to ask about absence levels in their previous role given that this is likely to be regarded as asking about their health. It may be competent to ask a generic question about whether the individual is disabled, but only if such a question is genuinely intended to monitor diversity and is kept entirely separate from the application, or where it can be shown that it is being asked for the purpose of taking positive action in relation to disabled employees. In the latter scenario it would be sensible to state in the application form that this is the reason the question is being asked.
“Intrinsic To The Work” Exception
The exception that is likely to be of most interest to employers is the “intrinsic to the work” exception. Currently there is little guidance on how this exception will be interpreted. However it is likely that it will allow employers to ask specific questions about health that relate directly to the fundamental skills required for the job applied for. For example the guidance notes to the Equality Act indicate that, for a job in a warehouse which requires manual handling, it would be permissible to ask the individual questions about their health to establish whether the applicant can do the job. What is unclear is whether it would be permissible in this context to ask a general question in relation to ability to undertake the role, or whether it would be necessary to ask specific questions in relation to the employee's ability to, for example, bend and lift. It is likely that a general question would only potentially be competent by reference to a job description which detailed the intrinsic functions of the job.
It may therefore be competent to ask: "Do you have any health condition which is likely to affect your ability to undertake the intrinsic functions of the job contained in the job description". However this assumes that the job description does indeed include the intrinsic functions of the job so employers may need to revisit their job descriptions to ensure that the "intrinsic functions" are specifically identified and ideally separated from other less important duties. The EHRC's non-statutory guidance on the Act suggests that "intrinsic" equates to "absolutely fundamental" so it would be very important to ensure that the job description is carefully framed.
Interview/Assessment Exception
Although employers may shy away from asking pre-employment health questions, at least until there is guidance from the Courts in relation to the “intrinsic to the work” exception, it is likely that the exception which allows them to ask applicants if they have a disability which requires the employer to make a reasonable adjustment to the recruitment process will be more heavily relied upon. If employers intend to take advantage of this exception then the best approach would be to ensure that reference is made to the specific method of assessment (for example interview or psychometric testing) as opposed to asking a generic question about their health.
It is likely to become best practice to take advantage of this exception in order to ensure that disabled applicants are assessed on a level playing field at the assessment stage and minimise the risk of a subsequent disability discrimination claim.
Post Employment Questions
Nothing in the Act prevents an employer from asking the employee whether they have a disability that might impair their ability to effectively undertake the duties of the position offered, once a conditional offer of a role has been given, provided that the general law on disability discrimination, including the obligation to make reasonable adjustments, is borne in mind.
At Morton Fraser we have put together an interactive training session on the Equality Act which is suitable for employees in all sectors. The session is designed to raise awareness of the issues and stimulate thought in an informative and fun way. It can be delivered at a time and place to suit your organisation. If you are interested in discussing this please contact David Hossack.
