With the Equality Act due to be enacted on 1 October I made a trip to Knightsbridge today to a roundtable discussion on absence organised by health and wellbeing service provider First Assist where the participants were employment lawyers, HR managers and occupational health practitioners. Michelle Haste, head of labour and employment in the London office of US law firm Crowell & Moring gave some useful advice on the Equality Act and recruitment and in particular what the law says on pre-employment health screening.
Judging by the amount of traffic to an article on pre-employment health screening on Personnel Today last week, this is a topic worrying a lot of HR people.
Haste's main advice was to avoid asking job candidates questions about their health unless the job for the some other criteria fell into one of the exceptions listed in the Act. Although asking the question itself is not discriminatory, it could lead a tribunal to conclude you had discriminated in some circumstances if there was a claim. A second tip was not to ask candidates lots of questions - and then find you did not know how to deal with the information.
"Unless you fall within one of the exceptions don't ask questions about health at the pre job offer stage," said Haste. "After you've made the offer make the proper enquiries."
Another lawyer at the event, Diana Kloss, who among other credentials is the author of a book on employment law and occupational health, stressed the importance of the rule that the questions asked must relate to things which are 'intrinsic' to the job, in other words crucial. One of the examples usually given is of a scaffolder who suffers from vertigo.
It might be worth checking what the exceptions to the rule are?
The event was filmed so I hope to be able to provide some clips at a later date on Personnel Today.
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Comments (2)
Noel
I've been speaking to quite a few clients about this. Many are worried until they realise that the restrictions are on medical questions asked prior to a job offer being made. If a job offer is made subject to a medical, or subject to completion of a medical questionnaire, then these new rules don't bite (although employers will still have to be careful how they handle the answers).
Laurie
Posted by Laurie A | September 23, 2010 4:49 PM
Posted on September 23, 2010 16:49
That's right, Laurie, most employers simply have to avoid answering questions until the job offer stage. However, where the job has 'intrinsic' health risks then it is worth recruiters checking out if the exceptions apply and they are legally able to ask health questions. Also I see you agree with the advice about being careful about asking questions when you may not be able to deal with the answers
Noel
Posted by Noel O'Reilly | September 29, 2010 11:42 AM
Posted on September 29, 2010 11:42