Questions about health during recruitment: case study

Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on the law relating to questions about health during recruitment, with a case study. The case study looks at a situation in which an employer wants to establish whether or not job applicants will be able to carry out a physically demanding job, without breaching provisions in the Equality Act 2010 that make it unlawful for employers to ask questions about health during recruitment. 

Build-it Rite Ltd runs a chain of builders' merchants and wants to recruit a new warehouse operative at one of its sites. The job is physically demanding and involves a great deal of heavy lifting, unloading and moving stock. The company has had problems in the past with warehouse operatives who have not been physically capable of the tasks and who have taken long periods of sickness absence, mainly for musculoskeletal conditions. The warehouse manager, John, wants to make sure that the person the company recruits is up to the job and will be able to carry out the physical tasks that the job demands. He also does not want to have to provide cover for someone taking lots of sickness absence in future. However, he is aware that, under the Equality Act 2010, employers cannot ask job applicants about their health. How can John make sure that he recruits a suitable candidate without breaching the Act?

New provisions in s.60 of the Equality Act 2010 (which came into force on 1 October 2010) restrict employers from asking health-related questions prior to making an offer of employment to a job candidate. Employers that ask candidates questions about health, whether on the application form, during an interview or in a medical questionnaire, could be liable for a successful claim of disability discrimination by a (disabled) candidate whose job application was unsuccessful. It will be for the employer to prove that the reason the particular individual was not recruited was not for a reason related to disability. The Equality and Human Rights Commission (EHRC) can enforce these provisions directly by taking proceedings against employers that ask job applicants questions about their health.

Therefore, it is advisable for employers to avoid asking health-related questions prior to making an offer of employment. Once a preferred candidate has been identified, the employer can make a job offer conditional on it obtaining satisfactory answers to a health questionnaire, or the applicant successfully undergoing a medical assessment. Employers should bear in mind that, if they withdraw a conditional job offer made to a disabled candidate, this could also result in a successful claim for disability discrimination if they did not properly consider the question of reasonable adjustments before doing so.

However, there are some exceptions to the general rule against asking health-related questions during the recruitment process (see Questions about health during recruitment: overview in this series for more details). One of these exceptions applies in circumstances in which asking questions is necessary for the purpose of establishing whether or not an individual will be able to carry out a function that is intrinsic to the work concerned. It is possible that, in Build-it Rite's case, health-related questions could be asked prior to a job offer being made, if the company can show that the physical tasks are intrinsic to the job of warehouse operative.

An analysis of the work carried out by other warehouse operatives at the company suggests that in the region of 80% of the job is physically demanding. Is this sufficient for Build-it Rite Ltd to demonstrate that physical tasks, in particular lifting heavy items, are intrinsic to the job of warehouse operative?

At this stage, it is difficult to say with any certainty exactly what "intrinsic to the work" means. This provision will be interpreted by employment tribunals looking at each case on its own facts. In the absence of case law to provide guidance on this exception, the EHRC Guidance for employers - recruitment (on the EHRC website) provides some assistance. The guidance states that "intrinsic" means "absolutely fundamental" to the job. An example is provided in the guidance of a construction company that is recruiting scaffolders. The guidance states that an employer can ask about health or disability on the application form or at interview if the questions relate specifically to the applicant's ability to climb ladders and scaffolding to a significant height. The ability to climb ladders and scaffolding is intrinsic or fundamental to the job.

It is certainly arguable that, in Build-it Rite's case, the ability to lift heavy objects and fulfil physically demanding tasks is "intrinsic to the job" of a warehouse operative. However, the company should ask only questions that are necessary to establish whether or not someone has the necessary skills to be able to carry out the physical tasks required of the job. Assuming that the exception applies, it will not allow for general questions about a candidate's health to be asked, only those that are necessary to establish whether or not an individual is physically capable of the job. It is likely that this provision will be interpreted quite narrowly by employment tribunals. The guidance expressly states that there will be "very few situations where a question about a person's health or disability needs to be asked". Employers should focus on establishing whether or not applicants have the relevant skills, qualities or experience to do the job rather than asking about their health or about a disability that they may have.

A further difficulty is that, if an employer can show that asking health-related questions is necessary (within the exception), the exception applies only after the employer has complied with the duty to make reasonable adjustments. The employer would need to know that the duty to make reasonable adjustments applies in relation to the individual concerned, but it is difficult to see how the employer can establish that reasonable adjustments apply in the first place. Until there is some clarity on exactly how this exception works in practice, it is advisable for employers to take a cautious approach to the issue of asking health-related questions before making offers of employment.

Therefore, Build-it Rite should make clear in the job description that the job involves physically demanding duties. John's interview questions should focus on whether or not candidates have the skills and experience to carry out the duties of a warehouse operative. It would be risky for the company to issue a medical questionnaire to all candidates prior to deciding who to interview for the job.

Build-it Rite could consider asking more specific health-related questions after it has made a provisional offer of employment, perhaps by issuing a health questionnaire alongside the offer. Depending on the answers provided to the questionnaire, and in view of the physical demands of the job, the company may also want to consider requiring the successful applicant to undergo a medical assessment by an occupational health practitioner, before deciding whether or not to proceed with his or her employment. If, as a result of these investigations, it appears that the individual has a disability and may have problems carrying out the duties of the job, Build-it Rite must properly consider what, if any, reasonable adjustments it should make to allow the individual to take up employment. If no reasonable adjustments can be made, it may be justifiable for the company to withdraw the job offer without being at risk of a successful claim for disability discrimination.

Next week's topic of the week article will be a checklist to help employers avoid liability for successful disability discrimination claims arising from questions about health during recruitment, and will be published on 19 October 2010.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.