One of the measures introduced by the Equality Act 2010 is the prohibition of the use of questionnaires on a job applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.
The measure, which came into force on 1 October 2010, does not prevent employers from asking job applicants any questions about their health but stipulates that they are only allowed to do so for the purpose of:
deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned;
deciding whether they need to make any reasonable adjustments to enable an applicant to take part in the selection process;
monitoring diversity amongst those applying for jobs;
taking positive action to assist disabled applicants; and
establishing whether the applicant has a disability where this is a genuine requirement of the job.
It is important to make clear why a particular question is being asked and how the information will be used.
Once a person has been offered a job, whether this is an unconditional or a conditional offer, the employer is permitted to ask appropriate health-related questions and require a medical assessment where this is normal practice for all applicants.
A candidate who thinks a prospective employer has acted unlawfully by asking questions that are prohibited can make a complaint to the Equality and Human Rights Commission (EHRC). The EHRC has the power to investigate and take enforcement action where necessary. A serious breach could result in a fine of up to £5,000.
If an employer uses a pre-employment health questionnaire and a disabled job applicant who is unsuccessful brings a claim of disability discrimination, using the questionnaire as evidence in support of his or her claim, it is up to the employer to prove that there was a non-discriminatory reason for not offering that person the job.
ACAS has published a quick start guide for employers on changes introduced by the Equality Act 2010
. This can be found at
For advice on ensuring your policies and procedures comply with the Act, contact us.