Helpful Advice

Pre-employment health questions and the Equality Act 2010

Diana Kloss

Note this is guidance only and the author cannot accept legal liability for its contents.  Reference should be made to the Act and the Employment Code of Practice published by the Equality and Human Rights Commission.

Section 60 of the Equality Act is new, and came into force on 1 October 2010.

In order to comprehend it is necessary to understand the policy behind it.  The legislature is trying to make it more difficult for employers to reject job applicants for disability-related reasons while pretending that the real reason is something else, such as qualifications, experience, performance at the interview, or economic reasons compelling the employer to decide not to appoint anyone to the post.

The employer should not as a general rule be allowed to know about any health problems until the job applicant has been judged suitable in other respects. However, the section does not provide that an employer can never reject a job applicant on health grounds. Employers are permitted to ask health questions after making a conditional job offer subject to medical clearance and to withdraw the offer if a health condition makes the person unsuitable even after reasonable adjustments have been considered.  Because at that stage the person has been assessed as suitable in other respects it is then clear why he is being rejected, which makes it easier for him to challenge the rejection in a claim for disability discrimination in an employment tribunal. The job offer should not be withdrawn just because the job applicant has a disability, or because of the effects of a disability, unless the employer has first considered whether reasonable adjustments might assist the disabled person to be employed, and rejection is ‘a proportionate means of achieving a legitimate aim’, for example the job applicant, if employed, would create a real (and not a fanciful) risk to health and safety in the workplace.

The section provides that an employer who asks health questions (which includes questions about sickness absence) pre-job offer in breach of the section and rejects a job applicant with a disability is presumed to be guilty of disability discrimination unless he proves to the contrary.

Also, the Equality and Human Rights Commission can take proceedings in the County Court on its own account against an employer who breaches the section, without necessarily having a complaint from an individual job applicant.

Section 60

An employer must not ask a job applicant a question about his or her health before:

  1. offering work to the applicant, or
  2. where the employer is not in a position to offer work, including the applicant in a pool from which the employer intends, when in a position to do so, to select a person to whom to offer work.

The offer may be conditional or unconditional.

EXCEPTIONS

Health questions can be asked pre-job offer where the question is necessary for the purpose of:

  1. establishing whether the applicant will be able to comply with a requirement to undergo an assessment, or establishing whether the duty to make reasonable adjustments is or will be imposed on the employer in connection with a requirement to undergo an assessment (eg fitness test which mobility-impaired applicant would find difficult, written paper at interview which someone with dyslexia would find difficult);
  2. establishing whether the applicant will be able to carry out a function intrinsic to the work concerned.  Where an employer reasonably believes that the duty to make reasonable adjustments will apply in connection with the work a function is only to be treated as intrinsic to the work once that duty has been complied with.
  3. Examples given in the Code of Practice are a construction company recruiting scaffolders which could ask specific questions related specifically to an applicant’s ability to climb ladders and scaffolding to a significant height, and a company recruiting someone to work in a warehouse who will be required to lift and handle heavy items which could ask questions specifically about ability to undertake such tasks (with reasonable adjustments for a disabled applicant, if required).
  4. monitoring diversity in the range of persons applying to the employer for work;
  5. supporting positive action in respect of disabled people, for example the “two ticks” scheme for guaranteeing disabled job applicants an interview;
  6. if there is a requirement for the person being recruited by a charitable organisation representing those with a particular disability to have that disability, eg a blind person to work for the Royal National Institute for the Blind, to establish whether the applicant has that disability;
  7. vetting applicants for work for reasons of national security.

Note that the disability discrimination provisions of the Equality Act do not apply to members of the armed forces, but they do apply to the police and the fire and rescue services.


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