Questioning Job Applicants about their health - the do’s and don’ts
Prior to 1 October 2010 many employers insisted all job applicants complete a health questionnaire when applying for staff vacancies, whether this information was relevant or not to the advertised vacancy. There were concerns this lead to indirect discrimination or at the very least deterred applicants with health issues applying. The new Equality Act 2010 does not prevent you from asking questions of potential employees about their state of health, it merely alters the timing when such questions can be asked and which employees can be requested to furnish such information.
Generally, we advise not asking a job applicant anything about their health prior to making them an offer of employment. If such questions are asked and subsequently you refuse to proceed to offer the applicant the role, a tribunal will be automatically entitled to conclude that you have discriminated on grounds of disability, even if it was not the reason why you declined the applicant. It will then be on the employer to prove this was not the case, e.g. by proving the applicant was not qualified or as experienced as other contenders.
In certain instances you can ask health related questions:
• to ensure an applicant can carry out an intrinsic function to the role, e.g. they are able to undertake heavy lifting
• to able the applicant to fully participate in the recruitment process, i.e. are any reasonable adjustments necessary during the interview so that they are not placed at any disadvantage, many employers now require employees to undergo an assessment process to assess his ability for a job
• or the applicant has a disability which is an occupational requirement for the job, to establishing whether an applicant has that disability
Note the necessity of carrying out reasonable adjustments at the interview stage itself. However, information obtained for the purpose of making adjustments to recruitment arrangements should, as far as possible be stored separately from other information about candidates. This is to ensure such information does not deter the recruiter when making the selection process. Guidelines suggest the use on application forms that state as follows is lawful:
“Please contact us if you are disabled and need any adjustments for the interview”
Note it is no longer legitimate to ask questions of an applicant’s state of health unless the questions specifically relate to certain aspects of the advertised role and are necessary. Even then one should proceed with caution. We recommend beforehand looking at how important the specified characteristics are in undertaking that role and whether they could be undertaken differently with reasonable adjustments. An employer should be cautious of assuming that every item of a job description is to be regarded, especially in roles comprising of several different types of function. The guidelines suggest, only functions that can be justified as necessary to a job should be included in a job description, for instance if a warehouse vacancy requires manual lifting and handling of heavy items the employer is permitted to ask questions of the applicants about their health to establish his ability to undertake the role (with reasonable adjustments for a disabled applicant). However, the employer is not permitted to ask questions health questions until he offered the candidate a job. We advise limiting questioning even then to those issues related to the role.
For further information please refer to the Code of practice on Employment www.equalityhumanrights.com