It is a concern of many people with health conditions that if they are obliged to disclose information about their health during the recruitment process, it may have a negative impact on their application and their chances of being selected for the role. Section 60 of the Equality Act 2010 addresses the problem of discrimination against disabled people in recruitment by imposing a general prohibition on employers from asking potential recruits questions about their health. There are however exceptions and an employer may be able to ask health questions for particular reasons.
Introduction
There is a general prohibition of pre-employment health questions set out in Section 60 of the Equality Act 2010. This states that a person to whom an application for work is made must not ask about the health of the applicant either before offering work to the applicant or before including the applicant in a pool from whom the employer intends to select a person to whom to offer work.
This applies whether the employer asks a question of you, as the applicant, or of some other person, such as your former employer by way of a reference request. Offering work does include making a conditional or unconditional offer and therefore an offer could be made conditional on satisfactory responses to pre-employment disability or health enquiries, or satisfactory health checks. However, an employer must not discriminate against you on the back of the results of such enquiries or checks. Health enquiries should be made relevant to the job and reasonable adjustments made if you are disabled.
Asking questions about your sickness absence record is considered to be a question about your health and would therefore likely fall foul of the rules.
Is It Directly Discriminatory To Ask Me A Prohibited Pre-Employment Health Question?
No – asking you a prohibited pre-employment health question will not in itself amount to discrimination but the way the employer acts on the responses you give may well be.
When Can Health Questions Be Asked?
Employers are allowed to ask pre-employment health questions where the questions are necessary for the purpose of any of the following: –
- Establishing if you will be able to comply with the requirement to undergo an assessment (i.e. an interview or other process designed to give an indication of your suitability for the work concerned) or establishing if a duty to make reasonable adjustments is (or will be) imposed on the employer in relation to you in connection with a requirement to undergo an assessment.
- Establishing if you will be able to carry out a function that is intrinsic to the work concerned. If, for example, you were applying for a job in a warehouse which required the manual lifting and handling of heavy items, an employer would be permitted to ask you questions about your health to establish whether you were able to do the job (with reasonable adjustments for a disabled applicant, if required). Questions should be focused on your current health and capabilities for the particular job and be no wider than is necessary.
- Monitoring diversity in the range of persons applying to the employer for work. Health questions can be asked for monitoring purposes but answers to questions should be kept separately from the application form and the person or people shortlisting and appointing should not see the information before deciding who to interview or appoint. It can be difficult for small employers to separate monitoring information about disability in job applications if one individual personally handles the whole recruitment process. However, they should disregard information about disabilities and consider your ability to do the job without reference to disability.
- Taking action to which permitted positive action would apply. It may be appropriate to ask health questions for positive action, for example, so that a disabled person can benefit from any measures aimed at improving disabled people’s employment rates.
- If the employer applies a requirement to have a particular disability, establishing whether you have that disability. For example, an employer wants to recruit a deaf project worker who has personal experience of deafness. This is an occupational requirement of the job and it would therefore be lawful for the employer to ask you on the application form or at interview about your disability.
Note however, that the rules on prohibiting pre-employment health questions do not apply to anything done for the purpose of vetting applicants for work for reasons of national security.
Can I Voluntarily Disclose My Health Issues?
You can of course voluntarily disclose information about your disability or health. The employer must however still only ask those questions that are permitted under Section 60 of the Equality Act 2010, such as asking questions about any reasonable adjustments you may require to carry out the role.
What Are My Rights If I Am Asked A Prohibited Pre-Employment Question?
Although a breach of Section 60 of the Equality Act is unlawful, the fact that you are asked a prohibited pre-employment question does not create any rights for you as a job applicant. It is the Equality and Human Rights Commission that has the power to investigate the use of prohibited questions and take enforcement action. However, the employer’s conduct in response to a prohibited question may result in an actionable claim by you.
An employer should not discriminate against or victimise people:
- in the arrangements they make for deciding to whom to offer employment.
- as to the terms on which they offer someone employment.
- by not offering employment.
Nor should an employer harass someone who has applied to them for a job.
Please note that having a health condition does not automatically mean that you meet the definition of disability under the Equality Act 2010. For further information see https://lincslaw.co.uk/services/employees/workplace-problems/disability-discrimination/
If you have a disability and believe the employer has discriminated against you, for example, by not offering you the role because of your disability, you may be able to bring a claim. For an example of how Lincs Law can help in these situations see one of our client’s stories at https://lincslaw.co.uk/blog/could-you-have-a-claim-for-disability-discrimination/
Lincs Law Employment Solicitors Can Help You
If you would like advice on your own situation please call us on 01522 440512 for a free, no obligation, telephone consultation. Alternatively, for more information about Lincs Law Solicitors, please visit our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors
Tags: disability discrimination equality act 2010 health and discrimination Kathryn Bolton Employment Solicitor Lincs Law Employment Solcitors pre-employment questions about health questions about health specialist employment solicitor