Until October 2010, there were no restrictions on the questions that you could ask at an interview regarding a job applicant’s health. However, that all changed with the advent of the Equality Act 2010 and employers now find themselves in the situation that it is only after they have already offered someone a job that they can ask a job applicant about the state of their health. Therefore you should not ask a job applicant questions about all medical areas until a job has been offered. This will include, for example, questions like:
• Have you had problems with your back in the last couple of years?
• Do you have arthritis?
• How many days of sickness absence have you had in the last year?
• Have you ever suffered from depression?
The restriction also covers written health questionnaires. Many employers have used general health questionnaires to find out about an applicant’s medical history, and have automatically sent the questionnaire out with the application form with instructions for it to be completed and sent back with the application form. The recruitment decision made for the particular job may then have been influenced by the information on the health questionnaire and it is possible that people would have been denied an interview because of their health, when otherwise they may have been the ideal candidate. Any health information gathered when talking to the applicant at interview stage may also have impacted upon the decision.
The Government realised that this was a hindrance to disabled people getting into the workplace so, in the Equality Act, reframed the law by highlighting these particular practices and severely restricting their continuation. The aim was to remove, as much as was practical, the factor of health from the decision making process, making the employer instead focus on the skills and qualifications of the applicant.
Employers that ask health questions too early could be found to have directly discriminated against a disabled candidate. Although the act alone of asking questions before a job offer is made is not unlawful and cannot land you with a potential claim, the risk with asking health questions comes when the job applicant asserts that they were rejected for the job because of the information you obtained by asking the questions. The burden of proof would lie with you at tribunal to show that, although you asked those questions, there was another non-discriminatory reason why you did not choose that person i.e. another applicant scored better against skills criteria. This reflects just how important it is to create a paper trail of your decisions. Remember, it is not just employees who can make a claim of discrimination against you, but job applicants too.
Against the backdrop of the general restriction of asking health questions are a number of exemptions where the Government realise that employers may need to be aware of an applicant’s disability before they have made the recruitment decision.
You are permitted to ask applicants whether they require any special access arrangements in order that they can attend an interview. Similarly, you can ask questions to find out if a person (whether they are a disabled person or not) can take part in an assessment as part of the recruitment process, including questions about reasonable adjustments for this purpose.
Health questions are also acceptable in order establish a person’s ability to carry out a function that is intrinsic to that job. For example, if you are recruiting for an electrician, it would be permitted to ask if they were colour blind, or if a job required the climbing of ladders, you could ask whether there was anything hindering the person from doing so. Where a specific impairment is required for a job, e.g. an employer wants to recruit a Deafblind project worker who has personal experience of Deafblindness, this is an occupational requirement and the employer is permitted to ask an applicant whether they are Deafblind.
Questions regarding anonymous disability monitoring may still be asked and where the question is being asked to ensure that an applicant who is a disabled person can benefit from any measures aimed at improving disabled people’s employment rates. Where a question is required for the purposes of national security, it will also be permitted.
You are able to offer a job offer conditional on a satisfactory health assessment, in the same way as offers are made conditional on satisfactory references and/or CRB checks. However, where a job offer is made and then a health issue is identified that shows the employee is not capable of doing the job, you must first deal with the issue of any reasonable adjustments that can be made to the workplace before withdrawing the job offer.
For more information on interview questions please contact Peninsula’s Advice Service on 0844 892 2772.