Since the introduction of the Equality Act 2010, employers are not allowed to ask potential employees to complete pre-employment health questionnaires until after a job offer has been made, unless an exception applies. These questionnaires used to be a way for employers to uncover relevant facts about an applicant’s health circumstances before deciding whether or not to take them on, but now an employer could be opening themselves up to claims of discrimination should they use them and decide to act upon the information supplied. It is also unlawful for an employer to ask for information from the applicant’s current or former employer, or to instruct an occupational health practitioner to ask questions in relation to health or disability on their behalf.
There are some exceptions:-
- Where it is necessary to establish if the applicant will be able to comply with a requirement to undergo an assessment
- When it is used to establish if reasonable adjustments are required for the recruitment process
- To monitor the diversity of applicants
- To take positive action
- When it is necessary to establish if the applicant meets occupational requirements
- When it is used to establish if the applicant will be able to carry out particular tasks that are vital to the role
The Protected Characteristics are listed as follows:-
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
What can employers do to avoid being accused of discrimination during the recruitment process?
- Not request that applicants complete pre-employment questionnaires prior to a job offer being made, either unconditional or conditional
- Keep any declarations regarding health and disability separate from other recruitment documents, ensuring that people responsible for shortlisting and appointing do not have access to it
- Not entering into conversation with applicants should they voluntarily offer information in relation to their health or any disability they may have
- Not cutting corners when looking at reasonable adjustments that could be made in order for a potential candidate to be able to perform the role in question
For further advice visit http://www.acas.org.uk/media/pdf/8/a/Equality-Act-2010-guide-for-employers.pdf.