The use of questionnaires about job applicants’ general health and similar issues before a job offer is made – including before selecting a pool of applicants from whom the successful candidate will be chosen – is prohibited under Section 60 of the Equality Act 2010. The purpose of this is to protect applicants with disabilities from discrimination during the recruitment process.
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 will only be allowed to do so for the purpose of:
- deciding whether they need to make any reasonable adjustments to enable an applicant to participate in the selection process;
- deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned;
- 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 will be 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.
If a candidate thinks a prospective employer has acted unlawfully by asking questions that are prohibited, he or she can make a complaint to the Equality and Human Rights Commission (EHRC). The EHRC will have 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, a disabled job applicant who is unsuccessful may bring a claim of disability discrimination, using the questionnaire as evidence in support of his or her claim. It will then be up to the employer to prove that there was a non-discriminatory reason for not offering that person the job.