What should an employer do when recruiting for a job that it believes will require a particular level of fitness or health?



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. If a job requires a certain level of fitness or good health the employer may be able to rely on the exception relating to functions that are "intrinsic to the work concerned", which permits employers to ask health-related questions to establish whether or not candidates can carry out these functions.

However, it is not yet clear in what circumstances this exception will apply and it is likely to be interpreted narrowly by employment tribunals. An added complication is that the exception applies to a function that is intrinsic to the job only when the employer has complied with the duty to make reasonable adjustments. It appears that the employer will have to establish whether or not it is under a duty to make adjustments before it can rely on the exception. Therefore, it is difficult to see how the exception will work in practice.

In most cases, according to the EHRC guidance for employers - recruitment (on the EHRC website), questions about health or disability will not need to be asked. Instead questions should focus on establishing whether or not a candidate has the necessary skills, qualities or experience to do the job.