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Asking Pre-Employment Health Questions

By JANE HATTON Published 3rd Jun 2013
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A lot of, mainly positive, things changed in the most recent discrimination legislation, the Equality Act 2010. One of the changes was that it is now illegal to ask candidates about health or disability related questions until the job offer stage, other than for monitoring purposes or to identify relevant reasonable ajustments which might be required in the recruitment process. This has left both employers and disabled job seekers with some confusion.

Thankfully, the Equality and Human Rights Commission (EHRC) has produced three documents – a guide for employers (incidentally in bright blue), a guide for job applicants (in a very dazzling bright orange), and a research report (using a pink so bright and dazzling it necessitates the need for sun glasses). Choice of covers aside, these are useful for a number of reasons. Section 60 of the Equality Act 2010 makes it generally unlawful to ask questions about disability and health before you make a job offer. However, the employer still has a duty to provide reasonable adjustments as required throughout the recruitment process. On first reading there may appear to be a conflict here.

The first guide – Pre-employment health questions: Guidance for employers on section 60 of the Equality Act 2010 – is aimed at employers. It discusses the purposes of section 60, what and who it applies to, which questions it prohibits and exceptional circumstances when some health-related questions can be asked. So long as the employer is confident about what is and isn’t allowed, and how to explain why a particular questions is allowed, they should avoid litigation. However, if they ask questions which can’t be justified and the candidates fails to be offered the job, they are leaving themselves vulnerable to accusation. The guide gives a number of helpful potential scenarios to explain how it works, and a checklist for employers. I suggest this guide is required reading for anyone involved in the recruitment process.

Another guide – Pre-employment health questions: Guidance for job applicants on section 60 of the Equality Act 2010 – is, obviously, aimed at job seekers. It explains that, in general, employers are not allowed to ask questions related to disability or health issues before a job offer is made (that can be a conditional job offer – conditional on health checks even – but failing to go ahead and appoint a candidate on unjustifiable griounds relating to a disability or long-term health condition is still illegal). It also explains the exceptional circumstances when certain questions can be asked, and what to do if unacceptable questions are asked. As with the employers’ guide, there are a number of scenarios which help to clarify some of the subtleties.

The third document is a research report called Use of pre-employment health questions by employers. This reports the findings of research carried out by IFF Research on behalf of the EHRC on the recruitment practices of employers relating to collecting information about a job applicant’s health prior to the job offer being made.

The guides are free and can be accessed by clicking on the relevant links above. Whether you are an employer or a disabled job seeker, it is important that you know where you stand legally on this issue.

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