Employer to ask a job applicant any health related questions

The basic position is that with a few necessary exceptions Equality Act 2010 s.60 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant’s health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. While merely asking the question is not disability discrimination it may still be unlawful under Equality Act 2006.

The practical position, unless an exception applies, is that if an unsuccessful job applicant brings a discrimination complaint to an employment tribunal against the hoped for employer, the onus will be on the employer to show that they did not discriminate against the job applicant because of any disability from which the job applicant may suffer. Even if there is no tribunal claim, the Equality and Human Rights Commission can take action against an employer for breach of Equality Act 2010 s.60.

The common practice of asking job applicants to complete a health questionnaire as part of the job interview process is thus now generally dangerous and is to be deprecated. Even what might appear to be perfectly normal conversation at a job interview could be dangerous – for example if an applicant’s CV shows a gap in employment in the recent past, an interviewer might well ask the reason and if told it was because of sickness might well in all innocence be tempted to go on and ask more, if only to sympathise. They could later regret having done that if the applicant does not get the job.

Equality Act 2010 s.60 is quite complicated. It has 14 sub-sections and the note above does no more than skim the surface. The section covers a wide variety of types of work, including not only employment but also (to take just two of the examples set out in sub-section 9) contract work and a position as a partner.

Source: http://www.emplaw.co.uk/lawguide?startpage=data/2010eqpa013.htm

Related resources: health and safety policy | contract of employment | employment contract template

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