Questions about health during recruitment: overview

Sam Greenhalgh of Steeles (Law) LLP begins a series of articles on the law relating to questions about health during recruitment, with an overview. Under the Equality Act 2010, employers may not ask job applicants questions about their health prior to offering them a job, other than in limited circumstances. Employers that ask questions about health during recruitment may be liable for claims of disability discrimination. 

Background

It has been common practice for employers to ask job applicants questions about their health during the recruitment process. This may be done in the form of a pre-employment health questionnaire or by asking questions during the interview. In some cases this will result in a disabled applicant suffering a disadvantage. Disability groups have lobbied Parliament to strengthen protection against disability discrimination during recruitment. As a result, provisions to improve protection for disabled job applicants were added to the Equality Bill during its passage through Parliament. Those provisions are now in s.60 of the Equality Act 2010, which came into effect on 1 October 2010.

Disabled job applicants were protected against discrimination under the Disability Discrimination Act 1995 (DDA), which has been repealed and replaced by the Equality Act 2010. However, under the DDA it was difficult for a disabled job applicant to establish that he or she had been rejected by the employer because of his or her disability. The effect of s.60 of the 2010 Act is that, although an employer will not be guilty of disability discrimination just by asking health-related questions per se, there will be a presumption of disability discrimination if it asks health-related questions during the recruitment process and acts in reliance on the answers in deciding not to offer the individual employment.

Protection under the Equality Act 2010

Under s.60 of the Equality Act 2010, employers must not ask job applicants about their health:

  • before they make an offer of employment (whether conditional or unconditional); or
  • where they are not in a position to offer work straight away, before including them in a pool of applicants from which they intend to select a person to whom to offer work.

The Equality and Human Rights Commission (EHRC) Guidance for employers - recruitment (on the EHRC website) gives the example of the second point of an employer that is opening a new workplace or that expects to have multiple vacancies for the same role but does not want to recruit separately for each one.

The restriction on asking questions applies whether questions about disability or health are submitted in the form of a written questionnaire or asked orally during an interview. Employers are not prevented from making an offer of employment conditional on the prospective employee providing satisfactory answers to a medical questionnaire or undergoing a medical examination. Similarly, employers that make an offer of employment conditional on satisfactory references would be able to ask referees questions about levels of sickness absence. If the results of a medical assessment or content of a reference suggest that the individual would not be capable of doing the job for health reasons, the employer may be able to withdraw the job offer. However, before it does so, it would need to consider whether or not the duty to make reasonable adjustments applies, and if it does, whether or not adjustments could be made to enable the individual to do the job. The employer may need to investigate further, for example by referring the individual for an occupational health assessment before it makes a decision. If it fails to do so, the employer may be liable for a successful disability discrimination claim.

Exceptions

There are a number of exceptions (in s.60(6) of the Act) to the prohibition on asking health-related questions prior to making an offer of employment.

Assessments and reasonable adjustments: Employers may ask health-related questions to establish whether or not applicants will be able to comply with a requirement to undergo an assessment or to establish if they are under a duty to make reasonable adjustments for an applicant to undergo an assessment. This exception allows employers to invite applicants to let them know if special arrangements may be necessary to enable them to attend the interview or undergo any other 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 any special arrangements or adjustments for the interview." An invitation to an interview might ask the job applicant if he or she requires any adjustments to the interview process to enable him or her to attend. This type of question is permitted.

Intrinsic functions of the work: Employers may ask questions to establish whether or not an applicant will be able to carry out a function that is intrinsic to the work concerned.

The EHRC guidance makes clear that "intrinsic to the work" means "absolutely fundamental" to the job. Where a health or disability-related question is necessary to assess whether or not the applicant can carry out a function of the work, this is permitted. However, it will not always be clear when a function is intrinsic to the job.

An example is provided in the EHRC guidance of a construction company that is recruiting scaffolders. The guidance states that the company can ask about health or disability on the application form or at interview if the questions relate specifically to an 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.

This exception applies to a function that is intrinsic to the work only after the employer has complied with the duty to make reasonable adjustments (s.60(7)). This leads to a potential difficulty for employers, in that they need to establish if a duty to make reasonable adjustments applies before they can ask about applicants' ability to carry out functions intrinsic to the job. It is difficult to envisage how this would work in practice, without the risk of an employer being in breach of the provisions of s.60. In any event, the guidance clearly states that there will be very few situations in which questions about a person's health or disability need to be asked. The focus should instead be on asking about an applicant's relevant skills, qualities or experience to do the job.

Monitoring diversity: The Equality Act permits employers to ask health-related questions aimed at monitoring diversity in the range of applicants applying for work. Diversity monitoring is something that many employers, particularly those in the public sector, already carry out as part of their recruitment process. When employers ask questions for the purpose of monitoring, they should state that the answers are used for monitoring purposes only and keep the questions as brief as possible. The answers should not form part of the selection process and it is best practice to keep the monitoring form separate from the application form.

Positive action: This exception applies where the employer is seeking to take positive action in relation to disabled people under the provisions of s.158 of the Equality Act 2010. The guidance suggests that this exception would apply to employers that operate a policy of guaranteeing all disabled applicants who meet minimum criteria an interview (under the "two ticks" scheme that enables employers to demonstrate their commitment towards disabled applicants (see the Directgov website for more details)). Application forms should make clear that the employer's commitment to positive action is the reason behind it asking health or disability-related questions.

Occupational requirements: If there is an occupational requirement for the holder of the job in question to have a particular disability, the employer will be permitted to try to establish whether or not applicants have that disability.

The guidance suggests that this exception might apply, for example, to an employer that wants to recruit a deafblind project worker who has personal experience of deafblindness. Clearly this exception will apply only in very limited circumstances.

National security: There is a further exception that applies where the questions relate to a requirement to vet applicants for the purposes of national security. This is an exception that has been carried over from the DDA.

Conclusion

If an employer asks health-related questions that do not fall within any of the exceptions and an unsuccessful applicant subsequently brings a claim of disability discrimination, it will be up to the employer to establish that its failure to make an offer of employment was based on other material factors such as qualifications or experience. This may prove difficult and costly. Therefore, it is advisable for employers to ensure that, if none of the exceptions apply, they ask questions about health or disability only after they have made an offer of employment. Even at this stage, employers should treat answers to any health-related questions with caution and fully comply with the duty to make reasonable adjustments.

Next week's topic of the week article will be a case study on health enquiries during recruitment and will be published on 11 October.

Sam Greenhalgh (SGreenhalgh@steeleslaw.co.uk) is an employment solicitor at Steeles (Law) LLP.

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