Employers who routinely use pre-employment health questionnaires in the recruitment process may need to dispense with these before the Equality Act comes into force on the 1st October 2010.
A recent survey has revealed that 65 per cent of HR Advisors ask candidates pre-employment health questions as a matter of course and nearly half of those employers surveyed also required that candidates complete health questionnaires before a formal job offer was made. A number of employers asked questions which were specific to the particular role, while a large percentage asked generic questions.
It will soon make it unlawful for an employer to ask a job applicant about his or her health before offering work and this includes conditional offers of work. It also covers applications for a position as a partner, as a contract worker, or for a personal or public office.
Most employers routinely ask job applicants pre-employment health questions as a matter of course, so the new law is likely to have wide implications. Employers are best advised not to send out pre-health questionnaires with employment application and information packs.
There is limited protection for employers. An individual job applicant can bring proceedings against a potential employer if he or she is refused a job after being asked a health related question, where the employer in reliance on that information rejects the job applicant, and the employer will contravene certain provisions of general anti-discrimination law.
An individual who thinks he was not offered a job because of an answer he gave to a health related question will be able to sue the potential employer. This is before a job offer is made. Disability discrimination rules applying after a job offer has been made will continue as at present.
An employer who is sued under the new provisions will have an uphill struggle to avoid liability, because the burden of proof will be reversed. An employment tribunal will assume that the employer has discriminated, unless it can show there was another reason for non-selection. Penalties for employers can include investigation by the Equality and Human Rights Commission.
There are 5 limited exceptions to the new rules, which make it lawful for an employer to ask health related questions before making a job offer where this is necessary to:
• find out whether reasonable adjustments have to be made to the normal job application process (for example, identifying special facilities to conduct interviews); or
• find out if the job applicant will be able to carry out a function that is intrinsic to the work concerned, for example heavy lifting; 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”.
Establishing whether a candidate is able to undertake selection tests or assessments, such as a fitness test to join the fire or police service, will also be exempt under the new legislation.
Employers need to re-consider their use of pre-employment health questions, and to urgently review any pre-employment questions. Unless they are job specific or otherwise exempt, withdraw them before the Act comes into force in October.
Once it comes into force the new law will apply to all employers, regardless of size. Most are likely to fall foul of it unless they change their recruitment policies and practices before recruiting new staff after 1st October (assuming the Act comes into force on that day).
Employers are strongly advised to take legal advice well in advance to ensure that their recruitment policies are “Equality Act compliant”.
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