Can you ask pre-employment health questions?

Scott Milligan | 21 Jun 2021

INSIGHTS

Generally, a prospective employer cannot ask a candidate any questions during the application process which relate to their health prior to making an offer of employment. However, there are exceptions to this general position.

For example, an employer is allowed to ask such questions if they are for the purpose of monitoring diversity in the range of persons applying for work, or to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned. This second exception is often sought to be relied upon by employers.

The case of Elite Careplus Limited (ECL)

The Equality and Human Rights Commission (“EHRC”) is Great Britain’s national equality body with responsibility for promoting and upholding equality laws. They recently published a report regarding the practice of Elite Careplus Limited (ECL) asking pre-employment health questions.

Section 60 of the Equality Act 2010 governs whether it is permissible for an employer to ask a candidate pre-employment health questions. The rationale behind Section 60 is that employers should not screen out applications from disabled candidates before they have had the opportunity to show they have the requisite skills and abilities to do the job.

ECL used a medical questionnaire asking applicants whether they had ever had any of the following health conditions:

‘tuberculosis, asthma, bronchitis or chest complaints’
‘depression, mental illness or nervous breakdown’
‘diabetes, thyroid or other gland trouble’
‘bladder or kidney trouble’, and
‘dermatitis or skin trouble’.

Further, they were asked if they had:

‘any current/recent medication condition or treatment which might affect your attendance or performance at work’, and
‘any illness/medical condition that prevented you from attending work, normal duties or activities for more than one week during the past year’.

These questions were brought to the attention of the EHRC, which investigated. It asked ECL to justify its use of such questions. This was undertaken initially on an informal basis, and – due to the lack of sufficient response from ECL – ultimately a formal investigation was launched.

What was the conclusion?

The EHRC conluded that this amounted to asking pre-employment health questions before making an offer of employment, and therefore potentially in breach of the Equality Act provisions. ECL stated that its employees must be ‘fit and proper to be able to carry out their day to day routine as there is a lot of manual handling.’ There was a possibility that this may have fallen under one of the exceptions to the rule.

However, the EHRC found that questions have to relate to intrinsic functions of the role. Therefore, any questions would need to be clearly relevant to what precisely the intrinsic functions are. ECL failed to provide any information to support this possibility. This, combined with the broad range of questions, led to EHRC’s conclusion that they went beyond anything that could lawfully be asked, it was therefore found that the pre-employment health questions were in breach of the Equality Act and an unlawful act notice was served on ECL.

ECL removed the questions from the job application form, and therefore the EHRC concluded sufficient steps had been taken to remedy the unlawful act and prevent repetition.

Employers should be aware of the ability to the EHRC to investigate such matters, in addition to the potential of disability discrimination claims raised directly by affected candidates. Therefore, any questions relating to the health of employees pre-employment must be assessed and carefully considered as to relevancy, and compliance with the Equality Act 2010.

Get in touch

For advice on asking pre-employment health questions, or any other employment related matter that could affect your business, our team of specialist employment lawyers can assist.