Job Related Health Questions

The basic position is that with some exceptions, it is inappropriate for an Employer to ask a job applicant any health related questions before offering work (which includes e.g. contract work or a partnership) to the job seeker or putting that person forward into a pool of workers to be considered for a job.

Whilst it may not amount to disability discrimination to merely ask health related questions, this may still breach the Equality Act 2006, and action can be taken by the Equality and Human rights Commission. Furthermore, if an employer acts adversely to information provided in response to such questions, this is likely to amount to disability discrimination, and an Employment Tribunal claim can be brought for damages.

The onus will be on the Employer to show that it did not discriminate against the job applicant because of any disability which that person may suffer from.

Employers are therefore to be discouraged from requiring a health questionnaire to be completed as part of a job interview process. Even apparently innocent questions can come back to haunt the unwary employer. For example, a question about a gap in a candidate’s CV could disclose that it related to illness and further questioning could lead to disclosure of disability. If the employer then decides not to offer the job to this candidate, there will be a risk that a disability discrimination claim can be brought.

The Employer is therefore advised in all job application and interview situations to make a careful note of what questions are asked, what answers are given and the reasons why the applicant was not considered suitable. This information should be kept for at least 3 months (the time limit for issue of proceedings) so that they have the clearest possible record in case proceedings are issued. Without good cogent reasons for not offering the candidate the job the employer who does not keep proper records could struggle to prove that it did not discriminate.

When are questions regarding health permissible?

Section 60 Equality Act 2012 sets out a number of exceptions. Questions relating to health can be asked for the purpose of:

(a) establishing whether the prospective employee will be able to comply with a requirement to undergo an assessment or establishing whether a duty to make reasonable adjustments is or will be imposed on the employer in relation to that assessment;

(b) establishing whether the prospective employee will be able to carry out a function that is intrinsic to the work concerned (with reasonable adjustments if it is felt that the employer has a duty to make these if the applicant is disabled);

(c) monitoring diversity in the range of persons applying for work;

(d) taking action to enable a disabled applicant to overcome or minimize any disadvantage they have because of their disability, or to meet their needs or participate in the interview or assessment process;

(e) establishing that an applicant has that disability, if it is a requirement of the job that the applicant has a particular disability.

If you wish to discuss any issue arising from this article, or any employment issue contact Janet Long on 020 3254 1435 (direct line) or by email to j.long@pj-h.co.uk

The contents of this article are intended for general information only. It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice. We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.