Pre-Employment Health Questionnaires - A Reminder

After more than 5 years in the making, the much anticipated Equality Act 2010 came into force on the 1 October 2010.

One of the most talked about changes, which was not in the original draft of the Act but was introduced following pressure during consultation, is the ban on the use of pre-employment health questionnaires except in very limited circumstances.

Q. So what does the Act actually say about pre-employment health questionnaires?

A. In a nutshell, a company who receives an application for work can not ask about the health of the applicant before work is actually offered, unless specific criteria are met.

Q. Why does the Act ban pre-employment health questionnaires?

A. To eliminate the potential for discrimination at the application stage where it was felt that all too often unjust assessments were made based on disclosed medical conditions (especially mental health conditions) that unfairly prevented suitable applicants progressing to interview. The Act also aims to encourage those with health conditions to apply for jobs (whereas they may have previously been put off from doing so by pre-employment health questionnaires).

Q. Can pre-employment health questions be asked at all?

A. Yes, but only in limited circumstances. The questions must be asked with a view to establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned.

The explanatory notes to the Act give the example of an applicant who applies for a job in a warehouse that requires manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer may ask the applicant questions about their health to establish whether they are able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until they were offered the job.

It will also be possible to ask an applicant has a disability that would require reasonable adjustments to be made to the recruitment process. The example given by the explanatory notes is of an applicant who discloses a speech impairment and asks for the adjustment of more time being allowed for the interview.

Q. How should pre-employment questions be phrased under the Act?

A. Unfortunately this is still not clear and the explanatory notes are of little help. Using the example from the explanatory notes, suggested approaches vary from the narrow...