Health Questionanaires & Recruitment

Health questions within the recruitment process after the October 2010

Currently many employers include a ‘health questionnaire’ in their recruitment packs, enabling them to discover job candidates’ health issues before interviews are offered. A new law, implemented by the Equality Act, will soon prevent prospective employers from asking a job applicant about his or her health before offering work. Although a date for implementation has not yet been set, it is likely to be October 2010.

Why have the changes been made?

Disability groups have been campaigning for several years for such changes to be made as they argued that the current law makes it too simple for an employer to reject a candidate on the basis that they are disabled. The aim is to prevent employers turning down candidates with disabilities simply because they have a disability without considering the candidates strengths and without any real understanding of the disability or whether the disability will have any impact on the job.

What does this mean for the employer?

Currently, employers are entitled to ask prospective employees health questions before their application is processed. However, once the new law takes effect, questions such as ‘have you any existing illnesses?’ will no longer be allowed, except in very limited circumstances.

Employers are bound to feel an element of apprehension about these changes. Certain employers may feel that they will be in the dark about prospective employees until it is too late. Employers should be reassured however that once a job offer has been made, the employer will be free to ask relevant health questions. They will then be able to assess what, if any, reasonable adjustments need to be made in order to allow that candidate to take up the job role. If it is necessary, at this time the employer would be able to present a justifiable business case as to why they could no longer employ the individual, and on this basis, be entitled to withdraw the offer of employment. 

Exceptions

There are to be limited exceptions to the new rules. These exceptions will come into being if the employer needs to:

• find out whether reasonable adjustments have to be made to the normal job application process (eg if the normal interview room is up steep stairs); or
• find out if the job applicant will be able to carry out a function that is intrinsic to the work concerned; or
• monitor diversity in the range of people applying for work;
• take positive action to assist a disabled person where that is allowed by other provisions; or
• find out that a job applicant has a particular disability where the job genuinely requires that they have that disability, provided that that requirement is a "proportionate means of achieving a legitimate aim".

What do employers need to do?

Once a date has been fixed for this law to be introduced, employers should carefully consider their recruitment process, and specifically whether that process requires prospective employees to answer questions about their health. It may be that some employers will then have to revise their recruitment policies and procedures. It is advisable that employers begin this process as soon as possible. As of October, employers must make sure that their employment law policies are compliant.

What happens if an employer does ask such questions?

Once the law takes effect, if an employer continues to insist on asking health related questions, or requesting completion of health questionnaires at the start of the recruitment process, they will put themselves in a seriously disadvantaged position. Should a candidate with a disability be rejected after filling in such a questionnaire, they will be entitled to sue the employer. In most cases the burden of proof will be reversed, meaning that the presumption will be that the employer DID discriminate and it will be for the employer to show that they did not.

The new rules will apply to all businesses both small and large. Employers are strongly advised to take professional employment law advice to ensure that their recruitment policies are "Equality Act compliant" before 1st October