One of the most significant changes brought in by the Equality Act on 1 October is the effect upon an employer’s ability to ask prospective employees questions about their health in pre-employment health questionnaires.
The Act provides that employers can no longer ask pre-employment health questions, subject to certain specific exceptions. Failing to adhere to the new provisions may result in an investigation by the EHRC and/or a Tribunal drawing an inference of disability discrimination in any case brought by a prospective employee who has been asked such questions and is then rejected for the role.
The main exceptions to the ban on pre-employment health questions are questions intended to:-
- establish whether the prospective employee will be able to undergo the interview/assessment and whether any reasonable adjustments are required in that regard;
- establish whether the prospective employee will be able to carry out a function that is intrinsic to the work;
- monitor diversity; or
- take positive action.
It is therefore unlawful to ask questions about the individual’s general health or even to ask about absence levels in their previous role. The exception that is likely to be of most interest to employers is the “intrinsic to the work” exception. Currently there is little guidance on how the "intrinsic to the work" exception will be interpreted. However, it is likely that this will allow employers to ask specific questions about health that relate directly to the fundamental skills required for the job applied for.
Nothing in the Act prevents an employer from asking the employee whether he has a disability that might impair his ability to effectively undertake the duties of the position offered, once a conditional offer of a role has been given, provided that the general law on disability discrimination, including the obligation to make reasonable adjustments, is borne in mind.