Pre-employment health questions and the Equality Act

Many employers want to find out about the state of health of potential employees but there are limits to the questions that can be asked. Find out what they are and how not to fall foul of the law on this aspect of recruitment.

Can employers ask a candidate questions about disabilities and health at the interview stage? Since the introduction of the Equality Act 2010, it is (generally) unlawful to do so, except in specific circumstances. Section 60 of the Equality Act deals with the law regarding the questions that an employer can ask and the circumstances in which they can ask them and is intended to prevent disability or health information being used to weed out job applicants.

Who is covered?

Section 60 applies to recruitment processes in England, Scotland or Wales involving internal or external applicants as well as the process whereby a recruiter selects a pool of candidates who can be offered work in the future.

Employers, employment agencies and authorised agents are all covered by it, as are all applicants for work and all individuals and organisations who offer work. It also applies to contract workers, partnership positions, pupillages and tenancies and appointments to personal or public office.

What enquiries are not allowed under Section 60?

Section 60 prohibits written or verbal enquiries by or on behalf of an employer about a job applicant’s disability and health during the recruitment process up to the point when a job offer is made. Questioning of a current or former employer is also prohibited.

If an employer makes a job offer conditional on medical checks being carried out, they can then ask health-related questions without breaching Section 60.

Exceptions to Section 60

There are only certain specific circumstances in which questions about health and disability may be asked:

• to confirm whether an applicant is able to participate in an ability test that will verify their ability to carry out the requirements of the job or to determine if there are any reasonable adjustments that will be needed in order for them to take part in such a test.

• to determine whether an applicant will be able to perform the parts of the job that are defined as intrinsic – the essential functions without which the job could not be carried out.

• to confirm that a job applicant has a particular disability if that disability is an occupational requirement of the job.

• to collect information necessary for monitoring diversity in the recruitment process. To ensure that it does not influence the application and interview panel, it should be detached from the main application form wherever possible.

• to take positive action in relation to disabled people; for example, if a company finds that disabled people are under-represented in its workforce and it wants to increase their number through positive action, it is allowed under Section 60 to ask disabled candidates to identify themselves so that they can be guaranteed an interview.

• to ensure that other legal requirements are complied with.

Explaining the purpose of exempted questions

Employers could be asked by applicants why questions relating to disability or health are being asked during a recruitment process. If the opportunity to explain the purpose of those exempted questions is not taken, an applicant who failed to secure the job and feels that it had something to do with the questions asked may decide that they want to start legal proceedings for discrimination.

Application Forms

If an employer’s application form contains a section requiring job applicants to reveal information about any health issues and the number of days they have had off because of ill health in the last two years, this requirement breaches Section 60 because:

• the questions clearly relate to health (and possibly disability) and

• this general health information is not necessary under one of the defined exceptions.

Micro-businesses

Some companies are of such a small size that one person handles all aspects of the recruiting process. They would therefore be unable to separate monitoring information from the main application form as they would have seen both. However, provided that information about disabilities is disregarded and the applicant’s ability to do the job is considered without reference to their disability, this will be unlikely to breach Section 60.

Internal Vacancies

If the recruitment process is for an internal vacancy, members of the interview panel may be in possession of information regarding candidates’ disability status through prior association with the candidate. They should not ask questions regarding that status unless it can be shown that the questions relate to an intrinsic part of the job.

The Enforcing Body

The Equality and Human Rights Commission is responsible for regulating compliance with Section 60. It is able to take legal enforcement action against employers should they be found not to be complying with the requirements of the law.

What employers should do

There are several steps that employers can take to ensure that their recruitment procedures remain compliant with the law:

• make sure that all employees who are taking part in the recruitment process (as well as agencies, if they are involved) are aware of what is required of them under Section 60.

• take care to outline to candidates why information about disability is being requested for monitoring purposes and make clear the uses to which the information will be put. separate disability monitoring data from other information provided by job applicants (unless it is not possible to do so).

• ensure that all recruitment policies, practices and procedures are checked to ensure that they do not contain any process or questions that may be in breach of Section 60. when it is necessary to refer candidates to an occupation health practitioner, this should be done only after a job offer has been made.

• revisit all policies, practices and procedures to make sure that measures to ensure compliance with Section 60 are included.

• carry out monitoring of how well the compliance measures are operating and review their performance, taking any further action that is required to achieve compliance at all levels and in all areas.

• arrange the recruitment process so that it focuses on job-related skills, knowledge, abilities and experience rather than health and disability.

• take out all questions that relate to health, disability and sickness absence in materials that relate to the recruitment process.

• if references are requested in advance of a job offer being made, no reference should be made to sickness absence.

• make sure that questions about reasonable adjustments relating to the recruitment process are asked at the appropriate stage

• when asking questions that are covered by exceptions to Section 60, show clearly why they are being asked and their relevance to the job.

If an employer finds themselves in a situation where they are on the receiving end of legal action by an unsuccessful applicant, they need to ensure that they can produce a good and sustainable reason for not offering the candidate the position. Therefore, every stage of the decision-making process should be documented so that the decision and the reasons behind it can be accessed, inspected and understood by any member of the organisation.

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