Equality Act 2010 and health questionnaires used in recruitment

19 August 2010

A significant reason for using pre-employment health assessments ("questionnaires") is to assess an individual, that an organisation is considering employing, in order to detect any pre-existing ill health issues or disabilities which might affect his or her ability to properly carry out the proposed job. Up to 10% of all new starters have some form of health complication. Many employers believe that pre-employment health screening is a vital and useful part of any recruitment system. It decreases the risk of recruiting employees who are not suitable or able (despite the organisation having considered reasonable adjustments that might be made) to carry out a particular job, due to health restrictions.

Equality Act 2010: what health-related questions and questionnaires are permitted?
The Equality Act 2010 ("Act") will limit the circumstances where an employer can ask a job applicant health-related questions, before offering him a post. Under section 60 of the Act, only questions that are necessary to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned will be allowed. It is likely that this part of the Act will come into force on 1 October 2010. This means that from that date, the only questions that will be allowed to be asked are those necessary (prescribed) for the purpose of:

• establishing whether there is a duty to make reasonable adjustments for the assessment process;
• establishing whether an applicant will be able to carry out a function that is intrinsic to the work concerned;
• monitoring diversity;
• establishing whether a candidate would fall within the provisions of the Equality Act relating to positive action;
• establishing whether a candidate has a disability where a role applied for requires the applicant to have a particular disability.

What does this mean in practice?
The Act's explanatory notes give an example of how this will work in practice:

"An applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job."

Questions such as "have you ever suffered from..." will probably be unlawful if they are not focused on the applicant's current capabilities. Questions on whether the applicant has a disability that requires the employer to make a reasonable adjustment to the recruitment process, will be lawful.

However, section 60(3) states that "A does not contravene a relevant disability provision merely by asking about B's health; but A's conduct in reliance on information given in response may be a contravention of a relevant disability provision". The Employment Tribunals are likely to be asked to decide on how this sub-section should be interpreted. In particular, does this sub-section suggest that a generic questionnaire would be permissible, provided the answers were not relied on by the employer?

Comment
Please contact your client partner should you need any further advice or assistance concerning any of the measures to be introduced by the Equality Act and how you may need to alter your current practices on recruitment and employment, to ensure you stay within the law. Related services