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Equality Bill developments: Pre-employment health questions to be outlawed

29 March 2010

The Equality Bill is continuing its passage through Parliament and now looks set to become law before the General Election, widely expected to be held in May.

The third and final reading of the Bill in the House of Lords took place on 23 March 2010.

Several employment-related amendments were made to the Bill during its time in the House of Lords.
The House of Commons is expected to examine these changes on 6 April, and the Bill seems likely to receive Royal Assent shortly thereafter.

Perhaps the most far reaching change made by the House of Lords is the banning of pre-employment health questions.

This means employers will not be able to ask applicants about their health before offering them work or placing them in a pool from which it will select a person to offer work in the future.

This restriction will apply not only to employment offers, but also to offers for contract work, partnerships, pupillages, and appointments to public offices.

An offer of work is defined as either a conditional or unconditional offer. It therefore appears that it will still be possible to make an offer to an applicant subject to a satisfactory medical examination as long as health questions were not asked before such an offer was made.

There will, however, be certain exemptions from the ban on asking health questions where this is necessary for:

It is not difficult to see that arguments could arise over whether a function is intrinsic to the work concerned. For example, would it be acceptable to ask someone applying for a very senior position whether they had ever suffered from a stress related illness? 

Merely asking an applicant about their health will not by itself amount to disability discrimination, but acting on the answer may well do.

If an employer breaches the ban on asking pre-employment health questions, the Equality and Human Rights Commission will be able to take action against them.

Employers should start reviewing their application processes now to establish whether they need to amend documentation or procedures in order to comply with the new requirements.

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