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.