Health Questions in Recruitment

A new law will soon make it unlawful for a prospective employer to ask a job applicant about his or her health before making an offer, or conditional-offer, of employment. Contract workers are also protected by this law.

Broadly speaking, an individual who thinks they were not offered a job because of an answer they gave to a health-related question will be able to sue the potential employer.

The Government confirmed on 31st August 2010 that this new law will come into force on 1st October 2010 and so from October employers should no longer send out generic pre-employment health questionnaires with employment application packs and should be cautious of asking health related questions at interview stage.

There are some limited exceptions to the new rules, which mean that it may be lawful for employers to ask health related questions before making a job offer where this is necessary to:

• find out whether reasonable adjustments need to be made to the normal job application process e.g. if wheelchair access if required; or
• find out of the applicant will be able to carry out a function that is essential to the job e.g. if a role involves heavy manual handling applicants can be asked if they can manage that; or
• monitor diversity among applicants; or
• take positive action to assist disabled people e.g. employers who want to improve disabled candidates’ chances of being selected for a vacancy can guarantee them an interview but they must make clear why the question is being asked; or
• establish whether or not an applicant has a disability where the role genuinely requires that they do.

Prior to 1st October 2010, employers need to review their recruitment policies and tailor pre-employer health questionnaires to ensure that they are compliant with the new law.

Once a job offer has been made, employers can ask generic health questions and even require applicants to undergo a medical assessment. If, following an offer being made it is deemed that information provided in response to subsequent health questions means that the applicant is not fit for the role the employer should make reasonable adjustments so the person can do the job or if that is not possible withdraw the offer.

This article was written by Lara Murray a Solicitor in our Employment Department.