The Equality and Human Rights Commission has issued guidance for employers and job applicants on pre employment health questions.
Section 60 of the Equality Act 2010 (the "Act") makes it unlawful to ask questions about the health of a job applicant before an offer of employment is made. The aim of Section 60 is to prevent health information being used to sift out disabled job applicants without them having had the opportunity to show they have the skills to do the job.
This is not a blanket ban, there are some exemptions, but the extent of employers' leeway has been uncertain. The Equality and Human Rights Commission ("EHRC") has now issued two lots of guidance; one for employers and one for job applicants, which sets out some practical examples and aims to assist in the understanding of the legislation.
Section 60 of the Act applies to any recruitment process in England, Wales or Scotland involving external or internal applicants and also to selecting a pool of candidates who may be offered work in the future. Employers, their agents and employment agencies are covered. Enquiries about a job applicant's health are prohibited up until the point where the job offer is made. At that point, an employer can make the offer conditional upon medical checks and health related questions may be asked.
It is not possible for job applicants to bring a claim directly against an employer because they have been asked a question in contravention of Section 60. However, the ECHR is responsible for regulating compliance and may take enforcement action against employers who breach Section 60.
In addition, if an employer does ask questions which are not allowed and then fails to offer that applicant the job, they could face a claim of disability discrimination, for which financial damages are unlimited.
Employers may ask about an applicant's health for the following restricted reasons:
- To find out if reasonable adjustments are needed in order to enable the job applicant to take part in the recruitment process. Any such information collected should be held separately from the application data. Note that this does not extend to finding out if reasonable adjustments would be necessary generally to enable the employee to do the job.
- To monitor equality and diversity. Again, this information should be collected and held separately from the recruitment data available to those making the recruitment decision.
- Where a particular disability is an occupational requirement of the job.
- Where another legal requirement requires the employer to ask health related questions. For example, seafarers may not be employed unless they have a valid medical fitness certificate.
- To ascertain whether the applicant will be able to carry out duties which are intrinsic to the work concerned.
What does "intrinsic to the work concerned" mean?
Whether something is intrinsic to the job is clearly open to different interpretations in different circumstances. However, one example given in the guidance is recruiting for scaffolders: an employer is likely to be able to ask whether an applicant has a health condition that would affect their ability to climb ladders. Many cases will not be as clear cut as this though. For example, could the ability to cope with high levels of stress be said to be an intrinsic part of a senior management role?
Sometimes an applicant may volunteer health information at an interview. If this reveals a likely problem with an intrinsic part of the job, then the interviewers would be able to probe further, but it would be good practice to explain their reasons for any additional questions. If the health information revealed appears to be irrelevant to the job role under consideration, then interviewers should not probe further and any such information disclosed should be disregarded in the appointment process.
Questions about health can be asked once the offer has been made and it would be open to the employer to require the successful candidate to undergo an occupational health assessment. This would also be the appropriate point in the process at which any reasonable adjustments to the job role could be discussed.
Checklist for employers
- Review application forms to ensure that these do not ask for general health information.
- Ensure diversity monitoring forms are kept separately from application data and that any health information in respect of reasonable adjustments for the interview process is kept separately from interview materials.
- If seeking references prior to making an offer, do not ask information about sickness absence.
- If ascertaining whether reasonable adjustments are required for the application process, explain why such information is being sought.
- Make sure candidates are referred to occupational health only after a job offer has been made.
- Train managers on Section 60 compliance and, if relevant, ensure that any agencies engaged give a clear contractual undertaking that they are compliant with it.