Recruitment and the Equality Act
Following the introduction of the Equality Act in Autumn 2010, employers must be sure their recruitment practices are compliant if they are to minimize the risk of disability discrimination claims.
In order to protect job applicants with a disability from discrimination during the recruitment process, Section 60 of the Act prohibits the use of questionnaires on an applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.
The measures, which came into force on 1st October 2010, do not prevent employers from asking job applicants certain questions about their health but stipulate the limited circumstances in which these can be asked. Those circumstances include when an employer is:
- Deciding whether they need to make any reasonable adjustments to enable an applicant to participate in the selection process;
- Deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned;
- Monitoring diversity amongst those applying for jobs;
- Taking positive action to assist disabled applicants; and
- Establishing whether the applicant has a disability where this is a genuine requirement of the job.
Even where it is permitted to ask certain questions prior to making a job offer, little guidance has been offered as to how those questions should be framed. It will be important to make clear why a particular question is being asked and how the information will be used. The present position is that employers will need to tread very carefully if wishing to ask health questions prior to making a job offer.
Once a person has been offered a job, whether this is an unconditional or a conditional offer, the employer is permitted to ask appropriate health-related questions and require a medical assessment where this is normal practice for all applicants.
If a candidate thinks a prospective employer has acted unlawfully by asking questions that are prohibited, he or she can make a complaint to the Equality and Human Rights Commission (EHRC). The EHRC has the power to investigate and take enforcement action where necessary. A serious breach could result in a fine of up to £5,000.
If an employer uses a pre-employment health questionnaire and a disabled job applicant who is unsuccessful brings a claim of disability discrimination, using the questionnaire as evidence in support of his or her claim, it is up to the employer to prove that there was a non-discriminatory reason for not offering that person the job.
ACAS has published a quick start guide for employers on changes introduced by the Equality Act 2010. This can be found here.
About the author
Kuba is an employment law expert and Practicing Consultant at Burnetts.
Published: Monday 6th December 2010