Employment law SOS: Job applications and health related questions

Following the introduction of the Equality Act in 2010, employers are now no longer allowed to ask potential recruits about their health (with some limited exceptions). Employers can ask some pre-employment health questions, but only in limited circumstances. Questions can be asked to establish if any adjustments need to be made during recruitment or to monitor diversity. In addition, an employer can ask questions to establish whether or not the applicant will be able to carry out a function that is intrinsic – ie, fundamental and necessary – to the job. So, how should employers phrase these questions? Employers should focus on the relevant skills for the role rather than a disability – for example, previous experience of forklift driving in other jobs or asking if the individual meets the DVLA Group 1 licence requirements for eyesight, as opposed to asking if someone can see clearly. Questions about current health issues are likely to be considered necessary rather than questions about past health. Employers should take a cautious approach by reviewing the core duties of the job on offer and focus the questions accordingly. If inappropriate questions are asked and an applicant is rejected following the interview, they may try to bring a direct disability discrimination claim and the burden will be on the employer to show that no discrimination took place. Alternatively, the job applicant may complain to the Equality and Human Rights Commission, which may investigate and take enforcement action.