Introduction
The new Equality Act introduced last October (2010) puts restrictions on asking health questions at the recruitment stage. Employers must NOT ask a job applicant questions about health or disability before offering the applicant work, or (if recruiting to a pool or bank) before including the applicant in the pool. [Exceptions are allowed for checking whether the applicant can fulfil intrinsic job function (see below) but this is a subjective area].
The restriction is enforced directly by the Equality & Human Rights Commission (EHRC) and so we can expect high profile investigations. Any breach will be a helpful factor too for individuals bringing claims at Employment Tribunal.
Exceptions
These can be allowed to assess whether the applicant can undertake the assessment process and/or the intrinsic functions of the job. It can also be used for monitoring (but must be hidden from the recruiter), if there are genuine occupational requirements and for positive action.
Where does the ban occur?
At all pre-offer stages including application forms, health questionnaires/ health declarations, interview questions, pre-offer reference requests, etc
Job offers can still be made on a conditional basis subject to satisfactory medicals, references, etc
What could be dodgy?
• Wide-ranging health questions that do not relate to the intrinsic functions of the job
• Raising health and disability-related questions in a reference request
• Asking applicants how many days off they have had in previous jobs or last 2 years
• Asking health and disability-related questions in interview that do not relate to intrinsic job functions of the job
What should employers do?
• Identify risky practices
• Assess for which types of jobs and functions you can legitimately ask health/disability questions pre-offer
• Understand what is and is not “intrinsic” to your job types
• Review application forms, pre-employment health questionnaires and instructions to occupational health advisers
• Establish guidelines for responding to information about health or disability which a job applicant volunteers (without your prompting)
• Re-consider what health information you collect and store
• Review guidance/ training given to staff involved in recruitment
Links
See EHRC website and their employer’s guidance at: http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/
The authors and publishers can accept no legal responsibility for any errors, omissions or opinions expressed by authors. It is the reader’s responsibility to take appropriate professional advice before acting on any issues raised in this article.
© 2011 Strategic HR Support Ltd
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Published by Strategic HR Support Ltd www.strategichrsupport.co.uk Email : info@strategichrsupport.co.uk
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