many employers are in fact unknowingly breaking the law, as Jacqui Mann
of HR4Nurseries explains
It will be five years in October since the ban on pre-employment health questionnaires came into effect with the introduction of the Equality Act. The act made it illegal to ask an applicant to complete a health questionnaire before an offer of employment has been made. But many nurseries are still asking questions about health to applicants.
What can you ask?
Before a job offer is made, you may only ask about disability or health if the question relates to a person's ability to carry out a function that is essential to the job. A question is allowed where a disability or health-related question would determine whether a person can carry out this function with reasonable adjustments in place.
If you ask an unlawful question about the health of a disabled applicant during the recruitment process they may bring a claim, assuming the applicant does not get the job. By asking a prohibited question, then the burden of proof shifts to you, the potential employer. This means that if the applicant brings a direct disability discrimination claim you will have to prove that no discrimination took place. If you didn't select an applicant for the role you will have to establish what the reason for the non-selection was.
Once you have made a job offer you can ask an employee to complete a health questionnaire. If you then find they have a health issue which is covered by disability, you would need to either:
- consider what reasonable adjustments you could make
- or present a justifiable business case as to why you could no longer employ the individual.
This would involve asking for consent to contact their GP, and arranging a visit to an occupational health advisor to give a professional opinion.
What is classed as disability?
People don't have to be registered disabled to be protected by the act. They must have a physical or mental impairment that has a substantial (that is, more than minor or trivial) and long-term adverse effect (12 months or more) on their ability to do normal day-to-day activities.