Questions about health during recruitment: frequently asked questions

Elizabeth Stevens of Steeles (Law) LLP concludes a series of articles on the law relating to questions about health during recruitment with some frequently asked questions that consider, among other things, when employers can and cannot ask questions about health during recruitment and how the obligation to make reasonable adjustments during recruitment is affected by the new rules on health-related questions. 

When did the rules on enquiries about disability and health during recruitment come into effect?

The new rules on enquiries about disability and health during recruitment, which are in s.60 of the Equality Act 2010, came into effect on 1 October 2010, along with most of the core provisions in the Act. From this date, employers that ask job applicants health or disability-related questions prior to making a job offer are potentially liable for claims of disability discrimination by job applicants who are unsuccessful.

Prior to 1 October 2010, job applicants who believed that their disability was the reason for an employer's failure to recruit them to a post could bring a claim under the Disability Discrimination Act 1995. However, discrimination was often difficult to prove in these circumstances. The new provisions in the Equality Act are intended to make it easier for disabled job applicants to establish their case if they are not appointed to a job.

Is it a breach of the law on disability discrimination to ask about health during recruitment?

Section 60(1) of the Equality Act 2010 states that an employer "must not ask about the health of the applicant". However, under s.60(3), asking health-related questions does not contravene the law on disability discrimination; it is the employer's reliance on the answers provided that may be a contravention.

The way the provisions in the Act are drafted means that an employer that asks health-related questions prior to making a decision about whom to appoint, and that fails to appoint a disabled candidate, will, in the event of a subsequent disability discrimination claim, have to prove that there were other reasons for its failure to appoint the candidate to the role that were not related to his or her disability. In other words, there will be a presumption of disability discrimination if the employer asks health-related questions prior to making a job offer, which the employer will have to rebut if an unsuccessful candidate brings a claim of disability discrimination. Defending a claim is likely to be difficult and time consuming. Therefore, it is advisable for employers not to ask health-related questions in most cases.

In addition, the Equality and Human Rights Commission (EHRC) can take direct enforcement action against employers that ask pre-employment health questions, although in practice this is likely to be rare.

Can application forms include questions about health?

Application forms can, in some circumstances, include questions about health to establish whether or not an individual has a disability. There are limited exceptions to the general rule against asking health-related questions (see below) and application forms may ask questions only where one of the exceptions applies (for example where questions are for monitoring purposes or to establish whether or not the employer needs to make reasonable adjustments to the recruitment process). Application forms and questionnaires accompanying application forms should not include general questions about health. Only questions that fall within one of the exceptions should be included.

Should employers avoid asking about general wellbeing during interviews?

Although it is clear that, under the Equality Act 2010, employers must not ask questions about health during interviews, there is nothing specifically in the Act to suggest that they cannot ask a candidate how he or she is, as "small talk" to break the ice at the beginning of an interview. Many employers may choose to ask interviewees how they are as a matter of courtesy. In the event that an unsuccessful job candidate interprets a general question about wellbeing as a specific question about health and brings a disability discrimination claim to an employment tribunal, it will be for the tribunal to determine whether or not the employer discriminated against the candidate in reliance on the answer given. In the absence of case law on this point, employers should take care to pose questions about how applicants are only in very general terms and to ask them only during the initial introductions at the start of the interview. In the event that an employee responds with specific information about his or health, the employer should not ask any further questions about health other than to establish whether or not the applicant requires adjustments to be made to the interview process.

In what circumstances do the new rules on disability and health enquiries apply?

The new rules in the Equality Act 2010 on disability and health enquiries apply during the recruitment process before the employer makes an offer of employment or, where the employer is not yet in a position to offer work to an individual, before it includes him or her in a pool of applicants from which it intends to select a person to whom to offer work. The rule applies whether the offer of employment is conditional or unconditional. Employers can make an offer of employment conditional on obtaining satisfactory answers to medical enquiries, without being in breach of the provisions in the Act.

The Act sets out exceptions to the prohibition on asking questions (see the next question). If one of the exceptions applies, the employer can ask questions relating to health and disability prior to making a decision about whom to appoint. The exceptions are quite limited in scope and employers will not be able to rely on them in most cases.

When can employers make enquiries about health?

An employer can ask health-related questions during the recruitment process where the purpose of asking the questions is to:

  • establish whether or not an applicant can comply with a requirement to undergo an assessment that forms part of the recruitment exercise, or to establish if the employer is under a duty to make reasonable adjustments to enable an applicant to undergo an assessment;
  • establish whether or not an applicant can carry out a function that is intrinsic to the work concerned;
  • monitor diversity;
  • allow the employer to take positive action in relation to disabled people;
  • determine whether or not an applicant fulfils an occupational requirement of the job to have a particular disability; or
  • vet applicants for the purposes of national security.

See Questions about health during recruitment: overview in this series for more details about the exceptions.

How is the obligation to make reasonable adjustments in the recruitment process affected by the rules on health enquiries?

Under s.20 of the Equality Act 2010, employers must make reasonable adjustments to accommodate disabled job applicants who are disadvantaged by the recruitment process. (See Reasonable adjustments in the Disability discrimination section of the XpertHR employment law manual for more details about the duty to make reasonable adjustments.) The rules about health enquiries during recruitment take this requirement into account. Employers are permitted to ask questions to establish whether or not applicants will be able to undergo assessments that form part of the recruitment process or if they need to make reasonable adjustments to enable applicants to undergo assessments. For example, an employer may need to give a dyslexic applicant more time to complete a written exercise or present an assessment in a different format for an applicant who is sight-impaired.

An employer can ask a job applicant, for example on the application form or in an invitation to an interview, to inform it if he or she requires special arrangements or reasonable adjustments for the purpose of attending the interview and/or undergoing an assessment that forms part of the recruitment process. Employers that ask health-related questions should include an explanation of why they are seeking this information and the questions should not go beyond the purpose of establishing whether or not reasonable adjustments are required to the recruitment process.

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

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. (See Questions about health during recruitment: case study in this series for an example of a situation in which this exception might apply.)

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.

Can employers make conditional offers subject to health clearance and then withdraw an offer if the health requirement is not met?

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.

Next week's topic of the week article will be the first in a new series on employing foreign workers and will be published on 1 November 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.