Before making a job offer, the general rule is that you can't ask questions about an applicant's health, including whether or not they have a disability. This covers questions to the applicant themselves, and questions to others, such as a former employer.
But, there are some exceptions...
For example, you can ask applicants whether they have a disability that means they will need reasonable adjustments to take part in your recruitment process. You should collect the responses separately from other information relating to the application, and ask the question at an appropriate stage (eg. after shortlisting, in relation to adjustments to interviews).
You can also ask questions to establish whether an applicant will be able to carry out a function that is intrinsic to the job. The questions would need to be specific to the role being applied for. For example, if you are a construction company recruiting scaffolders, you could ask whether applicants have a disability or health condition that would affect their ability to climb ladders.
There are other limited exceptions, such as where you are asking questions to monitor diversity; or in relation to taking positive action.
But, even if you can ask questions...
Even if you can ask health questions under one of the exceptions:
- Don't automatically reject applicants who don't meet the health criteria - you may have to make reasonable adjustments for a disabled candidate.
- Don't ask additional questions that aren't covered by the exceptions - so the construction company recruiting scaffolders couldn't go on to ask questions about mental health.
- Don't frame questions more widely than necessary: asking "Do you suffer from a health problem which might prevent you climbing ladders?" could be ok; but "Have you ever suffered from x, y or z?" might be a step too far - the individual might not suffer from a condition any more, or the condition might not affect them in such a way that prevents them climbing ladders.
What are the risks?
If you rely on information obtained via unlawful questions, perhaps refusing employment to a disabled applicant as a result, this could increase your risk in any subsequent disability discrimination claim.
Asking unlawful pre-employment health questions can also lead to enforcement action by the Equality and Human Rights Commission.
What about after we make a job offer?
After a job offer is made, there is more scope to ask health questions, and you can make a job offer conditional on satisfactory health checks or responses to health questions. However, you still need to avoid discrimination.
So, don't automatically reject applicants with health issues; ensure health enquiries and responses are relevant to the job; and comply with any duty to make reasonable adjustments for disabled candidates.
If you need to design medical questionnaires or want to discuss your response to an applicant's health issues, please speak to your usual Brodies' contact, or Workbox subscribers can view our pre-employment checks section.
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Practice Development Lawyer
