Outlook video: Equality Act 2010 - health questions during recruitment

XpertHR's head of content Jo Stubbs and group editor David Shepherd discuss the new rules prohibiting employers asking questions about the health of job applicants before making job offers, except in specified circumstances, brought in by the Equality Act 2010. 

 

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The questions in full:

 

What does s.60 of the Equality Act 2010 do?

Section 60 basically makes it unlawful for an employer to ask about a job applicant’s health until the person has been offered work on a conditional or unconditional basis. 

What do questions about an applicant’s health cover?

The restrictions would cover questions that are part of the application process, such as those in a questionnaire or on the application form, and questions during the interview. This would include questions about previous sickness absence, eg "how many days off sick did you have last year?"

However, employers can make an offer of employment conditional on a medical examination, satisfactory completion of a medical questionnaire or satisfactory references. At this point they can decide that someone’s health or disability would prevent him or her from doing the job (of course taking into account the duty to make reasonable adjustments). The prevention of questions prior to this stage is designed to ensure that employers consider whether or not each job applicant can do the job in question, and do not rule anyone out early on in the process because of a disability or health condition. 

If an employer asks question about health will it automatically be guilty of disability discrimination?

No. But if the employer asks such a question and then rejects the applicant, if the applicant goes on to bring a disability discrimination claim, the burden of proof will be on the employer to show that it did not discriminate. 

How can an employer find out if an applicant needs reasonable adjustments to be made to the recruitment process?

There are a number of exceptions to the rule about not asking health questions, one of which is where the question is necessary for establishing if the individual will be able to comply with a requirement to undergo an assessment (which includes a job interview or any process designed to give an indication of suitability for the work), or for the employer to establish if it is under a duty to make reasonable adjustments in relation to the requirement to undergo an assessment. So an employer can ask, for example, if the applicant would need any adjustments to the interview process. 

What are the other exceptions?

The other exceptions relate to monitoring diversity (in which case the details should be kept separate from the application form), positive action (for example guaranteeing all disabled candidates who meet the minimum requirements for the job an interview), and occupational requirements of the job, for example where the employer is recruiting a deafblind project worker and needs someone who has personal experience of deafblindness. 

There is also an exception where the employer asks a question about health to establish if the applicant can carry out a function that is intrinsic to the work. 

What does intrinsic to the work mean?

The guidance notes on the Act refer to an applicant for a warehouse job that requires the manual lifting and handling of heavy items, and say that, as manual handling is a function that it intrinsic to the job, questions about health would be permitted to establish if an applicant could do the job. The Equality and Human Rights Commission guidance on recruitment gives the example of a company recruiting scaffolders, and says health questions relating to ability to climb and work at height would be permitted. 

There is some confusion here, however, as the Act says the reference to a function that is intrinsic to the work is to be read as a function that would be intrinsic to the work once the duty to make reasonable adjustments had been complied with, where the employer reasonably believes that it would have a duty to make reasonable adjustments. It is unclear how the employer would establish the duty to make reasonable adjustments, without first asking the applicant if he or she has a disability, and potentially being in breach of s.60. 

 

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The Equality Act 2010
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Harassment under the Equality Act and disability discrimination
XpertHR editors discuss harassment under the Equality Act 2010, which extends third-party harassment to all the relevant protected characteristics and extends the definition of harassment to include harassment because of association and perception. 

 

Equality Act 2010: resources on XpertHR

We provide a round-up of the new and updated resources from XpertHR on the Equality Act 2010, the main provisions of which came into force on 1 October 2010. This includes major changes to the equal opportunities sections of our employment law manual and model policies and documents. 

 

Equality Act 2010 - what's not in force yet?

The main provisions of the Act came into force on 1 October 2010, but further parts of the Act are still to take effect - see the XpertHR forthcoming law section.