Are pre-employment health questionnaires allowed under the Equality Act 2010?
Does section 60 (pre-employment health questionnaires) of the Equality Act 2010 impact upon our existing recruitment policies and practices?
Section 60 of the Equality Act 2010 relates to the use of health questions during recruitment exercises. The use of health related questions during recruitment is a common practice within employment, so the introduction of this section could have a particular impact on the existing recruitment policies and practices used within the higher education sector.
During recruitment exercises, section 60 will prohibit employers from asking about the health of applicants:
- Before offering work to an applicant
- Before including the applicant in a pool of applicants from whom the employer intends to offer work to in the future
For example, it will not be permissible to ask questions that aim to establish how many days of sickness absence an applicant has accrued during previous employment prior to the candidate being made a conditional or unconditional offer of work.
Under section 60(6), employers will still be able to ask questions that are for the purposes of supporting disabled applicants during recruitment exercises, such as:
- Establishing whether any reasonable adjustments will be required to ensure that the applicant can participate in interviews and other forms of assessment
- Establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned (e.g. if the job involves driving there may be a requirement to have a particular level of eye sight)
- Monitoring diversity in the range of people applying for employment - useful in identifying and prioritising actions to tackle barriers to employment
- If the vacancy has a requirement for applicants to have a specific impairment
- To take positive action under section 158. To ensure that an applicant who is a disabled person can benefit from measures aimed at improving representation and employment rates of disabled people. For example, the guaranteed interview scheme (also known as the Two Ticks Scheme). The aim of this scheme is to encourage disabled people to apply for jobs by offering an assurance that should they meet the minimum criteria they will be given the opportunity to demonstrate their abilities at the interview stage.
It will be important for HEIs to make it clear to all applicants as to why questions are being asked and for what purpose the information given will be used. A clear statement of intent outlining these practices should be applied across each stage of the recruitment process (application, short listing, interview and job offer) to ensure transparency and fairness.
There may be some concerns in regards to the interplay between section 60 and fitness to work or practice. Whilst such concerns may arise thereafter, as the result of a health assessment following a job offer, these will now need to be managed as capability issues.
Offer of work
Other than exceptions listed under sub-section (6) an employer would not be permitted to ask the applicant other health questions until a candidate has been offered the job.
Section 60(10) states that a reference to the offering of work is a reference to making a conditional or unconditional offer of work.
A conditional offer of work may be an offer pending references and/or health assessment. Therefore, as part of a conditional offer of employment, it is likely to be permissible to ask about a person's health and involve occupational health practitioners.
Section 60(13) states that whether or not a person has a disability is to be regarded as an aspect of that person's health. Therefore, the confirmation of a job offer, if based on the use of health assessments, needs to be stringent in compliance with other sections of the Act, such as reasonable adjustments, to avoid discrimination against disabled people.