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The Equality Act: Can you still use pre-employment health questionnaires?

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The Equality Act 2010, which will become law in October, simplifies and harmonises the current law on discrimination. As an employer, your obligations will largely remain the same, there are however some changes to the existing law and one of the most topical has been in relation to pre-employment health enquiries.

It is thought that one of the main reasons why disabled persons often fail to reach the interview stage is down to pre-employment enquiries about their health. The Equality Act therefore sought to redress this disadvantage suffered by disabled persons.

Whilst, the new Act is not quite a blanket ban on pre-employment health enquiries, it does limit the circumstances when you can ask health related questions before you have offered the candidate a job. The general rule will be that an employer must not ask about a candidate’s health before offering them the job. You can however ask such questions where it is necessary for the purpose of:

  1. establishing whether the candidate will be able to comply with a requirement to undergo an assessment (such as an interview or test);
  2. establishing whether the candidate will be able to carry out a function that is intrinsic to the work concerned (for example, if a job involves heavy lifting it may be necessary to ask the candidate with a mobility impairment whether they could manage this);
  3. establishing whether there is a duty to make reasonable adjustments for the disabled person in relation to the selection process;
  4. monitoring diversity amongst candidates making the application for jobs (for example, an employer may ask whether someone has a disability for the purposes of ensuring that their adverts are reaching disabled persons);
  5. taking positive action (for example, you may decide to guarantee interviews for disabled persons); and
  6. assuring yourself that a candidate has the disability where the job genuinely requires the jobholder to have the disability (for example, a mental charity requires a candidate with personal experience of mental health conditions. They advertise for a candidate who has such a condition, they may ask at interview whether the candidate has that condition).

An employer will not commit an act of disability discrimination merely by asking about the candidate’s health, but if they rely upon this information this could give rise to a discriminatory act.

Once they have passed the interview and the job has been offered you are permitted to ask appropriate health questions, in fact this will be necessary to comply with your duty to make reasonable adjustments.

It is therefore important that employers review their current practices in light of this becoming law, if you have any pre-employment health questions you would be advised to withdraw these unless they comply with the above exceptions before the Act comes into force.

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