Posted on 7 February 2017
The Equality Act 2010 (which makes it unlawful for employers to discriminate against employees because of certain protected characteristics, including disability) specifically prohibits prospective employers asking potential employees about their health other than for certain prescribed reasons. The prohibition includes asking questions about health and sickness absence in reference requests and agents asking applicants questions on behalf of prospective employers.
If pre-employment health questions are asked, the prospective employer risks the applicant making a claim of disability discrimination against it if it discriminates against the applicant in response to information disclosed by the applicant in answering the pre-employment health questions.
So what is a prospective employer permitted to do?
A prospective employer can make a job offer conditional upon satisfactory responses to pre-employment questions provided it does not discriminate because of the responses. In effect, this means that the questions should be limited to those that are relevant to the job or where the employer needs to establish whether it has a duty to make reasonable adjustments for any disabled new recruits.
A prospective employer can also ask questions which are “necessary” in certain circumstances including:
Establishing whether an applicant is able to undergo the recruitment process (e.g. an interview or other selection process or assessment) or whether any reasonable adjustments are necessary in relation to the recruitment process;
Establishing whether an applicant will be able to carry out a function intrinsic to the work. For example, if an applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items, manual handling is a function which is intrinsic to the job and therefore the prospective employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The prospective employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job;
Monitoring diversity in the range of persons applying to the employer for work;
Taking permitted positive action (positive discrimination); or
Establishing whether the applicant has a particular disability where the prospective employer requires this (e.g. if a charity serving deaf people requires the holder of a position in the charity to be deaf).
It is therefore clear that there are only very limited circumstances in which a prospective employer can ask an applicant about their health. If an applicant discloses information about their disability or health without the prospective employer having asked any questions, the prospective employer must ensure that in responding to this disclosure it asks only questions that are permitted (see above). So, for example, if an applicant for a research assistant’s job discloses that they have hearing difficulties the employer could respond by asking questions about what reasonable adjustments would be required to enable the applicant to carry out an intrinsic function of the job (researching topics and producing reports).