This now makes it illegal to ask a candidate to complete a health questionnaire before an offer of employment has been made.
I understand the reasons behind the ban. It is to ensure that everyone is properly considered to see if they can carry out the role, and not be ruled out because of issues arising from their health. However, I believe that this has serious consequences for some sectors, especially early years.
The ban also prevents you from asking the candidate questions to establish how many days of sickness absence they have accrued during previous employment prior to making a job offer. It also prevents you from asking these questions in a reference if an employment offer has not been made.
You may only ask about disability or health, before offering a job, where the question relates to a person's ability to carry out a function that is intrinsic to that job. Where a disability or health-related question would determine whether a person can carry out this function with reasonable adjustments in place, then such a question is allowed.
I recommend that you review your job descriptions to ensure that the 'intrinsic functions' are specifically identified and, where possible, separated from other less important duties. You can then ask the candidates this question: 'Do you have any health condition which is likely to affect your ability to undertake the intrinsic functions of the job contained in the job description?'
The guidance from the Equality and Human Rights Commission states that 'intrinsic' equates to 'absolutely fundamental'.
You can ask people to complete a health questionnaire after you have made a job offer. If you then discover they have a health issue, you would need to 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 medical consent from the employee to contact their GP, and arranging a visit to an Occupational Health Advisor to give a professional opinion on whether the employee is fit for the role. This, of course, can take a long time and is costly to the nursery owner. Unfortunately, as the law stands, if you don't follow this procedure you could find yourself facing a claim of direct discrimination because of disability.
We don't yet have information on what a court will class as intrinsic to the role. This will not be known until the first case goes to court and we see how the tribunals view the situation.
I believe this law needs to be reviewed and exemptions made for those working with children and vulnerable adults. Let's act now and not put children at potential risk.