Can employers make conditional offers subject to health clearance and then withdraw an offer if the health requirement is not met?
Section 60(1) of the Equality Act 2010 provides that an employer must not ask a job applicant questions about his or her health before offering him or her employment. This includes conditional job offers. Employers can make a conditional job offer that is subject to the potential recruit satisfactorily completing a health questionnaire or undergoing a medical check. However, if it transpires that the individual has an underlying health condition that may amount to a disability under the Equality Act 2010, the employer should be cautious about withdrawing the offer. It should seek further information about the nature of the health condition and the impact that it is likely to have on the individual's ability to do the job. The employer should also consider whether or not it can make reasonable adjustments to enable the individual to take up the post. If the employer fails to make reasonable adjustments it may be liable for a successful claim of disability discrimination.