Employers must beware new rules which forbid asking job applicants about their health before a job offer is made.

Graham Irons, Partner in Howes Percival's Northampton employment department, said the changes, which come into force in October, should prompt employers to undertake a thorough review of the questionnaires and application forms they ask job applicants to complete.

Graham said: “The Equality Act 2010 prohibits employers from asking questions about a job applicant's health before a job offer is made."

“Therefore many common practices such as pre-employment health questionnaires, health related questions on application forms and even questions about an applicant's health at interview, will need to be reviewed to avoid falling foul of the new law.”

The law does not outlaw all pre-employment health related questions. Instead, employers are prohibited from asking about the health of a job applicant (including whether or not they have a disability) unless they can show it was to:

  • Establish whether any reasonable adjustments need to be made to the selection process
  • Establish whether the applicant can carry out a function “intrinsic” to the job
  • Monitor the diversity of job applicants
  • Take positive action to assist disabled people
  • Identify whether the applicant is disabled where it is an occupational requirement.

Graham said: “Accordingly, employers will need to ensure that they can justify any health questions they do ask by reference to the above exceptions. For example, for a job which involves heavy lifting asking applicants health questions related to their ability to lift heavy items is likely to be permitted, but questions about their mental health will not.”

There will be consequences of breaching the new law, added Graham. “Asking a prohibited pre-employment health question means that an unsuccessful job applicant will have an advantage in bringing a direct disability discrimination claim to an Employment Tribunal, as the applicant will succeed in their claim unless the employer can show the reason the person was unsuccessful was for reasons unconnected with their disability.

Employers who are found to have discriminated against unsuccessful job applicants will be ordered by the Tribunal to pay compensation to them. Furthermore, the Equalities and Human Rights Commission can investigate employers who ask prohibited questions, even if no one has brought a Tribunal claim.”

Graham outlined the steps businesses should take:

  • If your business routinely uses pre-employment health questionnaires they should either be withdrawn or amended so that the questions relate to the essential functions of the particular job applied for. The same applies to any health questions on job application forms
  • Ensure staff members who conduct interviews are trained on the new law so they are aware of that questions can and cannot be asked.
  • Keep records of the reasons why each job applicant was or was not successful to assist defending any challenges to your recruitment decisions.