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Health and fitness rules for recruitment

Peter Done

Q: At what stage of an employment agreement should a health questionnaire be introduced to the employee? Can this be done prior to interview for a job?

A: Since the implementation of the Equality Act 2010, the major piece of employment legislation prohibiting discrimination in many different areas, employers have been obliged to tread carefully with the use of health questionnaires.

Prior to the Act coming into force, it was commonplace for an employer to ask that a job applicant answer a series of questions about the state of their health and fitness. These questions could include very general enquiries about illness and disease, with some not even related to the employment in question.

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The government was of the opinion that individuals were being refused a job interview, or refused the position subsequent to an interview, because of information that was provided on the health questionnaire that was not actually a bar to the individual being able to perform the job.

Therefore to eradicate this situation the Act essentially placed a prohibition on employers asking job applicants to complete a health questionnaire at any point before the individual had been offered the job, so that state of health and fitness and any disability played no part in the recruitment decision. This prohibition also extends to an employer attempting to find out this information in other ways. For example, the applicant should not be questioned during the interview about their state of health.

Only after the individual has been offered the job (whether outright or subject to conditions), or included in a pool of successful candidates to be offered a job when a position becomes available, can they be asked about their health and any disability.

An employer does not commit an act of disability discrimination merely by asking about a job applicant’s health, but the employer’s conduct in reliance on information given in response may lead a tribunal to conclude that the employer has committed a discriminatory act. The employer would then have to show that the applicant was not selected because other candidates had better qualifications.

There are certain exceptions to the rule when employers can ask about health and disability at pre-offer stage. For example, in order to find out if an applicant needs reasonable adjustments for the recruitment process, 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, because having a specific impairment is an occupational requirement for a particular job, to establish a person’s ability to carry out a function that is intrinsic (or absolutely fundamental) to that job, or for monitoring purposes.

Peter Done is managing director of Peninsula