When can I ask questions about an applicants’ health?

Legal experts look at the dangers of discrimination

A job applicant has disclosed in his application form that he had a childhood illness which has left him with a permanently weakened immune system. I would really like to understand whether this has any implications so far as his health and attendance levels are concerned.

However, in light of the change in the law which prevents prospective employers from asking health questions which might be discriminatory on the grounds of disability, am I allowed to ask him about it?Paras Gorasia, employment barrister at Kings Chambers, says:

You are right to consider the matter carefully before asking the job applicant about his disability. One of the major changes established by the Equality Act 2010 is a general prohibition on employers asking questions about the health of job applicants before either offering them a job or placing them in a pool of applicants from whom future recruits are selected.

Having said that, there are some limited circumstances in which you are allowed to make inquiries about a job applicant’s health. For example, you might need to establish whether someone will be able to comply with a particular assessment required to apply for the job, or at least establish whether you have a duty to make reasonable adjustments for an applicant in that situation.

Employers are also allowed to ask about health and disabilities to monitor diversity in relation to applicants for the job in question, and even to establish that a job applicant has the necessary disability if such is required for a certain position. Finally, if a particular function is intrinsic to that job, such as the ability of a bus driver to be able to see, then you are allowed to inquire further.

If your circumstances do not match any of those outlined above then I would strongly advise against asking further questions regarding this particular applicant’s health. The consequences of doing so could be severe and may involve a discrimination claim by an unsuccessful applicant, along with the risk that enforcement action is taken by the Equality and Human Rights Commission which could mean that you, as the employer, have to pay a fine of up to £5,000.

Apart from the financial consequences you would also be exposing your business to serious reputational consequences. The cost and management time required to defend any litigation or enforcement action against a business should not be underestimated, so tread carefully and by the book.Audrey Williams, partner at Eversheds, the law firm, says:

Employers are prohibited from asking about a candidate’s health before offering them work or drawing up a shortlist of potential recruits. The prohibition also extends to intermediaries in the recruitment process, such as recruitment consultants, headhunters, agencies, etc if they receive or sift through applications, even though they are not directly offering work but are acting on behalf of another.

Limited, but nonetheless important, exceptions to the rule apply. For example, questions can be asked about an individual’s health at the initial stages of recruitment if they are necessary to establish the candidate’s ability to carry out functions intrinsic to the work concerned. Similarly, inquiries might be necessary to ensure they are able to participate fully in an assessment exercise.

The key to what questions can be asked lawfully will invariably depend on the nature of the position to be filled and the demands of the role, as well as the timing of the questions. In your scenario it seems unlikely the job applied for will involve inherently hazardous conditions for the job applicant – but that is possible.

For example, if the role will involve overseas travel or a medical position where exposure to illness is increased, further investigation into their immunity deficiency might well be appropriate at this stage, in the interests of the candidate. If either is applicable, it would be both lawful and sensible to ask the job applicant about the nature and effects of their condition.

However, questions about attendance levels or general health are not permitted at all, not least since they are rarely pertinent to the individual’s ability to do the role.

This changes once an offer of employment is made (including conditional offers). Health questions may be asked thereafter, providing they are not discriminatory in nature.

In terms of potential exposure to claims, an individual who believes he or she has been subjected to inappropriate pre-employment health questions can complain to the Equality and Human Rights Commission.

More significantly for the employer, however, they are likely to find it difficult to defend themselves against complaints of disability discrimination.Email your career development questions to: recruitment@ft.com

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