Can an employer ask a prospective employee to fill in a medical questionnaire?

An employer can ask a prospective employee to complete a medical questionnaire, but only after it has made him or her a job offer and only if it complies with data protection requirements. Section 60(1) of the Equality Act 2010 prohibits employers from asking job applicants questions about their health before offering them employment (with some exceptions).

If an employer intends to ask prospective employees to complete a medical questionnaire after making them an offer of employment, it must ensure that it has a legal basis to do so under the General Data Protection Regulation (2016/679 EU) (GDPR), as this will amount to processing their personal data. The employer would have a legal basis if processing is necessary to establish an employee's fitness to do the particular work, to comply with health and safety obligations.

Information about an individual's health falls into the special categories of personal data under the GDPR. An employer can process special category data where this is necessary for the purposes of performing or exercising employment law obligations or rights, such as in relation to health and safety. The employer must have in place a policy document that explains how it will comply with the principles of the GDPR in relation to the special category personal data and that sets out its policies on retention and erasure of the data.