Health Questions: to ask or not to ask?

Prior to the Equality Act 2010, it was increasingly common for employers to ask prospective employees to complete medical questionnaires before or at the time of making an offer of employment. However, the landscape of what and when health questions are permissible has changed considerably since the Equality Act 2010 came into force on 1 October 2010.This comprehensive eBulletin seeks, firstly, to explain the new legal position and provide practical guidance for employers in relation to pre-employment health questions (Part I) and, secondly, to highlight issues to take into consideration when asking post-employment health questions and taking action in reliance on responses to such questions (Part II). 
Part I: Pre-employment Health Questions: less is bestMany employers would argue that asking health questions is a key aspect of the information gathering process at recruitment stage. It makes business sense for an employer to find out about underlying physical or mental conditions of a potential employee in order to, as far as possible, avoid the risk and cost of sick pay and exposure to substantial liability in the event of termination of employment. However, this has to be balanced with the right of prospective employees to be fairly treated and not discriminated against. Indeed, pre-employment questions about health are thought to be a significant factor in disabled job applicants failing to reach the interview stage. Evidence also indicates that health enquiries at the application stage have a disincentive effect on disabled individuals applying for jobs in the first place.

The Equality Act 2010 (“the Act“) has sought to redress this balance by prohibiting, with some limited exceptions, the use of pre-employment medical questions.

 
Part II: Post Offer Health Enquiries: proceed with cautionAs we have seen in Part I, pre-employment health questions can only be asked in very limited circumstances. However, there are no such restrictions on asking health questions once an offer of employment – whether it is conditional upon medical clearance or not – has been made. However, employers still need to take care when acting in reliance on information obtained in response to the health questions or checks. In this Part II we focus on practical guidance and issues to take into consideration when making health enquiries and acting further to information obtained from such enquiries.

19 July 2012

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