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Pre-employment health questions – what not to ask

How many days have you taken off work due to sickness in the last five years?”  Most employers ask for this type of information on a job application form.  However, once the Equality Act 2010 comes into force in October this year employers will not generally be able to ask these types of questions before offering an employee a job.  This is because the Act outlaws the use of pre-employment health questionnaires in most circumstances before a job offer has been made.

So what can an employer ask and when?

The Equality Act details circumstances when asking a job applicant about their health is acceptable. These are limited to:

  • establish whether there is a duty to make reasonable adjustments for the assessment process
  • establish whether an applicant will be able to carry out a function that is intrinsic to the work concerned
  • monitor diversity
  • establish whether a candidate would fall within the provisions of the Equality Act relating to positive action (although since the whole concept of “positive action” is in doubt this ground may prove irrelevant)
  • establish whether a candidate has a disability where a role applied for requires the applicant to have a particular disability

However, the Act does not detail what sort of questions will be allowed in order to establish whether these exceptions apply. For example, if questions are being asked to find out whether the applicant will be able to perform a “function that is intrinsic to the work” (with reasonable adjustments for a disabled applicant), at what point will questions go beyond those “necessary” to establish that ability?

Many employers believe that they have the right to ask any question that could potentially identify issues with an applicant’s health. The logic of this argument is that, when a question is posed, the employer does not know what the answer will be and, on some occasions, the answer may reveal details that are clearly relevant to their ability to perform the required duties. However, is the fact that a question might occasionally reveal relevant information sufficient to argue that it is a “necessary” question?

Unfortunately, in the absence of any detailed guidance in the Act, it is likely that Employment Tribunals will have to draw the line between necessary and unnecessary questions.

We believe that questions about an applicant’s current health are likely to be more acceptable than questions about their past health because they focus on their current state of health rather than trawling through past health issues which may be irrelevant.  Questions starting with “have you ever suffered from …” are likely breach the Act as they do not focus on the applicant’s current capabilities.

Whilst there is no free standing right for an applicant to complain about being asked questions about their health prior to receiving a job offer, employers who do so are likely to find it harder to defend themselves against a disability discrimination claim.  If the individual is turned down for a job and claims this was because of an answer he gave in the pre-employment questionnaire, then the burden will be on the employer to disprove discrimination.

Many employers will have to adapt their recruitment procedures to ensure that they only ask relevant information at the application stage.  However, employers will be able to continue to make any job offer conditional upon a successful medical examination or a satisfactorily completed health questionnaire.  They will only be liable to a claim for disability discrimination if the information provided indicates that the applicant is suffering from a disability and the employer has not considered, or where reasonable, made adjustments.