These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.
Legal Matters - Can Employers ask Job Applicants about their Health?
Asking a job applicant about their health before making a job offer is thought to be one of the main reasons disabled people do not get offered jobs or even reach the interview stages. Prior to the Equality Act in October 2010, employers were allowed to ask job applicants questions about their health and sickness absence providing that these questions were not discriminatory. This is no longer the case.
The new rule is that employers must not to ask job applicants questions about their health before making a job offer. If enquiries are made about health before a job offer then there is a presumption that the job applicant suffered disability discrimination. There are some exceptions to the new rules which apply where it is necessary to ask questions for the purpose of:
- finding out whether reasonable adjustments have to be made to the job application process,
- finding out if the applicant will be able to carry out ‘a function that is intrinsic to the work concerned’
- monitoring diversity in the range of people applying for employment
- taking positive action to assist a disabled person to overcome disadvantages in the workplace
- establishing that a job applicant has a particular disability where the job genuinely requires that the applicant has that particular disability
In practice, these exceptions are narrow and it will always be a high risk strategy to make enquiries about health or disability either on application forms or at job interviews. The only alternative is to make enquiries after a job offer has been made. It is possible to make job offers conditional on a successful medical or health questionnaire but the problem is that, if applicants are rejected at this late stage, then there is a high risk of disability discrimination claims.
The new provisions will cause serious difficulties for some employers. It will certainly be necessary to review recruitment policies and more employers will face disability discrimination claims from unsuccessful job applicants. Many employers are concerned about employing people with long term health conditions and are worried about the cost of sickness absence and the potential cost of making adjustments. Quite aside from this issue of disability, many employers are concerned about employing people who are generally fit but have a poor absence record in their previous jobs. It will become much more difficult to find out this.
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Asking a job applicant about their health before making a job offer is thought to be one of the main reasons disabled people do not get offered jobs or even reach the interview stages....</p>
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