The Equality Act 2010
The Equality Act 2010 ('the Act'), much of which came into force on Friday 1 October 2010, consolidates and restates existing discrimination legislation.
It also brings about a number of important changes to the law, one of which concerns pre-employment health questionnaires. The Act prohibits employers from asking questions about a job candidate's health (including any disability) prior to making a job offer, other than in limited circumstances. If an employer breaches these provisions there is a risk that the job applicant will bring a disability discrimination claim. In addition an employer who asks prohibited questions may be subject to enforcement action by the Equality and Human Rights Commission.
The Act states that employers must not ask about a job applicant's health before:-
- Offering work to the applicant; or
- deciding whether to include the applicant in a short list.
Employers may ask health-related questions before short listing or making a job offer if it is necessary for them to do so for one or more of the reasons permitted by the Act. These reasons include:-
- Establishing if the applicant will be able to comply with a requirement to undergo an assessment (that is, an interview or other process designed to give an indication of the applicant's suitability for the work concerned);
- establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned;
- monitoring diversity in the range of persons applying to the employer for work; and
- if it is a genuine requirement of the job that the applicant has a particular disability.
A question that does not fall within one or more of these exceptions is prohibited.
Many employers currently undertake health screening at an early stage of the recruitment process. Those who do so should now review:-
- The type of questions they pose; and
- the time at which they pose them.
They should also consider amending their procedures so as to comply with this new legislation and seek specific advice if they do use health questionnaires or undertake health screening as part of their recruitment process.
4 October 2010
