When interviewing a potential employee it is important not to contravene the disability discrimination law when enquiring about health and sickness records.

The Equality Act 2010 states very clearly that an employer must not ask about the health of an applicant during the interview as the way the answers are used may contravene the disability discrimination law.

If an employer asks health-related questions during a selection and recruitment process and then subsequently does not appoint a disabled candidate, they will, in the event of a disability discrimination claim, have to demonstrate that there were other reasons for the decision not to appoint the candidate and that those reasons were not related to their disability.

Voluntary disclosure

In the event that a candidate voluntarily discloses information about their health or disability during the interview, the employer must be careful not to ask any further questions. It may be that the candidate starts to discuss reasonable adjustments that they may need to do the job. If that occurs, the employer should tell them that this is something that will be discussed with the successful applicant once the job offer has been made.

Relevance

The employer should only ask questions during the interview that relate to the applicant’s ability to perform the core duties of the role. In addition, the questions should be restricted to those that are necessary, for example by asking whether the applicant suffers from any health problems that might prevent them from performing the particular function in question, rather than sending them a general medical questionnaire.

Employers may choose to ask pre-employment health enquiries for certain specified reasons such as where the questions are necessary to establish whether the applicant can carry out a function that is intrinsic to the work concerned. An example is an applicant who applies for a job in a warehouse, which requires heavy lifting. As heavy lifting is an intrinsic function of the job, the employer is permitted to ask questions about the applicant’s health to establish whether or not they are able to do the job (with reasonable adjustments for a disabled applicant, if required).

Conditional offers

It is possible to make job offers conditional upon satisfactory health checks or medical questionnaires. However, if the employer decides to withdraw the offer as a result of the response, there needs to be clear evidence that it is not due to discrimination against the applicant. If the applicant could have a disability, it will be dangerous to withdraw the offer unless it is clear that the health issues identified mean that the applicant would be unable to carry out the role after any reasonable adjustments have been made. This should be supported by the person specification.

Once health questions have been asked, if a claim is put forward for discrimination it is very difficult to defend therefore it is advisable for employers not to ask health-related questions in any circumstance.

If you would like to review your recruitment and selection process or discuss having some training for your managers, please give us a call. We are a friendly bunch who provide quality outsourced, expert HR advice and can be contacted on 01473 360160.