Questions about health during recruitment: checklist
Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on the law relating to questions about health during recruitment, with a checklist to help employers avoid liability for successful disability discrimination claims for asking questions about health. Under new provisions in the Equality Act 2010, employers may not ask job candidates questions about their health before making a job offer, other than in limited circumstances.
1. Become familiar with the new rules on pre-employment health checks.
New provisions in s.60 of the Equality Act 2010 relating to questions about health during recruitment came into effect on 1 October 2010 (as did most of the core provisions in the Act).
Section 60 restricts the circumstances in which employers can ask job candidates health-related questions prior to making a job offer. In most cases, unless one of the exceptions to the rules applies (see Questions about health during recruitment: overview in this series and checklist point 4 below, for more details), there will be a presumption of disability discrimination if an employer asks health-related questions as part of its recruitment process and does not appoint a disabled candidate. If the candidate subsequently brings a claim of disability discrimination, the employer will have to prove that its decision not to appoint him or her was for a reason that was not related to his or her disability. In addition, the Equality and Human Rights Commission (EHRC) can take direct enforcement action against an employer that asks health-related questions during the recruitment process. Therefore, it is important that employers are familiar with the provisions.
The restriction applies to any health-related questions that employers ask before they offer work, whether in the form of a questionnaire issued to all candidates or oral questions at interview. However, employers are permitted to ask health-related questions once they have made an offer of employment. Employers can make job offers conditional on obtaining a satisfactory response to health-related questions.
2. Train all managers and employees who are involved in recruitment so that they understand the new rules.
It is important that all managers and employees who are involved in the recruitment process are familiar with the new rules. The restriction on asking questions about health applies to all enquiries, including questions that are asked during an interview. Employers should ensure that anyone who may be involved in interviewing and selecting new employees is made aware of the new provisions and the potential risks attached to asking health-related questions prior to making a decision about to whom to offer a job. Employers should also consider providing refresher training to all those involved in recruitment to ensure that the new provisions are properly understood.
3. Amend recruitment and equal opportunities policies and procedures to take account of the new provisions.
Employers that previously issued health questionnaires with application forms will need to review this practice and should issue the questionnaire only when they have made a provisional offer of employment. Unless one of the exceptions applies, employers should not ask health-related questions during any part of the recruitment process prior to making job offers. This should be reflected in the recruitment procedure.
Employers should review, and if necessary amend, their recruitment policies to reflect the new rules. They should also make clear in their equal opportunities policy that disabled job candidates will be fairly assessed on their skills and experience and that they will not ask health-related questions prior to making recruitment decisions (unless one of the exceptions applies).
4. Ensure application forms ask about health or disability only if one of the exceptions applies.
There are a number of exceptions to the general prohibition on asking health-related questions prior to making an offer of employment. These exceptions apply only in limited circumstances, namely where the employer asks questions to:
- establish whether or not it will be under a duty to make reasonable adjustments in connection with the recruitment process;
- establish whether or not an applicant will be able to carry out an "intrinsic" function of the work (see checklist point 5);
- monitor diversity;
- support positive action; or
- identify suitable candidates for a job where there is an occupational requirement for the post holder to be disabled.
Employers can also ask questions relating to a requirement to vet applicants for the purposes of national security.
Employers need to ensure that their application forms ask questions about health only if one of the exceptions applies. For example, recruitment documentation that employers send to prospective candidates often includes an equal opportunities monitoring form. This monitoring form can include a question asking whether or not applicants have a disability. Employers should keep completed monitoring forms separate from application forms. No one involved in the shortlisting process should view the monitoring information. An employer may also ask if candidates are disabled for the purpose of promoting positive action in relation to disabled people, for example under the "two ticks" guaranteed interview scheme (see the Directgov website for more details). The application form should make clear why health-related questions are included.
Employers can ask questions to establish whether or not a candidate may require reasonable adjustments for the purpose of attending an interview or carrying out an assessment that forms part of the recruitment process. For example, an application form may state: "Please contact us if you need the application form in an alternative format or if you require special arrangements or adjustments for the interview."
If an employer can demonstrate that the job in question is subject to an occupational requirement that the post holder has a disability, the application form could include a question asking if the candidate has the particular disability. This exception will clearly be very limited in scope, and will apply, for example, to disability-related charities recruiting project workers who require personal experience of a specific disability. Again, an explanation of why the employer has requested this information should be included on the application form.
Employers should remove questions that do not fall within one of the exceptions from the application form (and any accompanying documentation) and ask them only after making a provisional offer of employment.
5. Consider whether or not health-related questions are permitted to establish that a candidate can carry out a function that is "intrinsic" to the work.
Health-related questions are permitted during the recruitment process to establish whether or not an applicant will be able to carry out a "function that is intrinsic to the work concerned". This will apply only where the employer can show that the function is absolutely fundamental to the job. Examples in the EHRC Guidance for employers - recruitment (on the EHRC website) of jobs where this exception may apply are scaffolders (who are required to climb ladders and work at height) and cycle couriers (who are required to ride a bicycle).
An employer can ask questions to establish that a candidate can carry out intrinsic functions only after it has complied with the duty to make reasonable adjustments (where it reasonably believes that this duty applies). This creates a potential difficulty for the employer, in that it needs to establish if a duty to make reasonable adjustments applies before it can ask about the candidate's ability to carry out functions intrinsic to the job. It is hard to envisage how this would work in practice, without the risk of the employer being in breach of s.60.
The exception is likely to be interpreted very narrowly by employment tribunals and the EHRC guidance makes it clear that there will be very few situations in which questions about health or disability need to be asked. Instead, questions should focus on whether or not the candidate has the necessary skills, qualities or experience to do the job. For this reason, for the majority of posts, it is generally inadvisable for employers to rely on this exception.
6. Consider whether or not it is necessary to ask health-related questions to make adjustments to the recruitment process.
For jobs where the recruitment involves an interview, employers can ask candidates invited for interview whether or not they require special arrangements or adjustments for the purpose of attending the interview (for example, wheelchair access to the room). Further thought should be given to recruitment processes involving other forms of assessment, for example where candidates are required to deliver a presentation or carry out a written exercise. Employers should give candidates enough information about the assessment process so that they can consider what adjustments they may require (for example, if they need documents provided in a different format), and they should be asked to inform the employer of any necessary adjustments in advance.
7. Avoid asking about health in interviews.
The restriction on asking health-related questions applies to both written and oral questions, so employers should take care to avoid asking health-related questions during the interview. Interview questions should focus on the individual's skills and experience rather than asking about his or her health or disability. Recruitment procedures should be reviewed to ensure that those involved in interviews do not ask health-related questions.
8. Do not ask about health in references sought prior to making job offers.
Where an employer seeks references prior to making a job offer, it should not ask the referee for details of health issues affecting the candidate or about the level of sickness absence recorded for the individual. Employers can ask these questions where references are sought following a provisional job offer that is made conditional on obtaining satisfactory references (and, where appropriate, satisfactorily completing a medical questionnaire or undergoing a medical assessment).
If, following a job offer, referees provide information that suggests that an individual may have health-related problems, the employer should not withdraw the job offer until it has carried out further investigations and properly considered reasonable adjustments. If an employer withdraws a job offer on health grounds without making reasonable adjustments it could be liable for a successful claim of disability discrimination.
Next week's topic of the week article will be FAQs on questions about health during recruitment, and will be published on 25 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.
