Avoiding Discrimination in Pre-employment Health Questions

Introduction

During the recruitment process, employers should carefully consider the need to make reasonable adjustments for any disabled candidates that apply. One way that employers can do this is through pre-employment questions.   

There is a balance to be struck with pre-employment questions and employers should tread carefully when asking them. On the one hand, employers can ask specific pre-employment questions about health or disability to establish what reasonable adjustments may be needed for disabled candidates in the recruitment process. On the other hand, however, an employer should be careful to avoid intrusive and unnecessary questions about disability as this can have consequences further down the line. The rule of thumb is that employers should not ask candidates questions about health or disability prior to making a job offer, unless that question relates to a ‘prescribed reason’.

Prescribed reasons

In Northern Ireland, the relevant disability legislation is the Disability Discrimination Act 1995 (“DDA”) and it does not specifically address this issue. However, the Equality Act 2010 which replaced the DDA in England, Scotland, and Wales, has sought to provide employers with legislative guidance on this. The legislation (at section 60) states that it is acceptable to ask questions about a candidate’s health or disability in certain circumstances. The more common circumstances where it is appropriate to ask pre-offer questions include:

• to establish that the applicant will be capable of performing tasks or functions which are intrinsic to the role.For example, to determine whether a scaffolder applicant could climb ladders as this function is intrinsic to the position.
• to establish, in circumstances where the applicant needs to undergo an assessment or interview, whether they are able to do so and to understand if a duty to make reasonable adjustments to the assessment or interview process will arise.
• to facilitate a positive action scheme which aims to help disabled people find work.

Pre-offer questions should only be asked if they are absolutely necessary; in practice, asking pre-offer questions should be the exception rather than the norm. Any information that is collected as a result of pre-offer questions should be kept separate to the information or scoring that the employer generates as part of the application process. Except where there is a requirement for the applicant to be capable of performing a specific task or function that is intrinsic to the role, the information collected on their health or disability should not form any part of the decision to accept or reject their application. Employers should not ask prospective employees questions in relation to reasonable adjustments for the job itself at this stage. These should only be asked at the conclusion of the recruitment process once the job offer has been made.

Conditional offers

Employers can make conditional job offers, pending a satisfactory response to a pre-employment health check. However, employers must ensure that they do not discriminate against disabled applicants by making a decision on the applicant as a direct result of a pre-employment health check or enquiry. Employers must ensure that health or capability requirements are relevant to and necessary for the performance of the job. Where the prospective employee would be capable of performing the role provided a reasonable adjustment was made, the employer should implement all required reasonable adjustments before the employee’s first day of work.

Conclusion

Although there is no legislation in Northern Ireland which prohibits or limits the questions that can be asked by an employer in pre-employment health checks, we recommend that employers only ask questions prior to the offer of work for the prescribed reasons set out in section 60 of the GB Equality Act 2010. Thereafter, any questions should relate to the ability to do the job. Employers and HR teams must take the appropriate steps during recruitment and at the decision-making stage to ensure that they have selected candidates based on merit only and not on their disability or condition.

In the cases of disabled candidates who are not successful in obtaining the role they applied for, employers should keep records and be able to show that their disability was not a factor in their rejection and that all reasonable adjustments were made to the application process to remove the barrier that may have been caused by their disability or condition. If a claim of direct disability discrimination was brought by an applicant, the burden of proof in defending the claim would automatically shift to the employer to prove that they did not discriminate against the applicant. For this reason, employers should be careful when devising pre-employment questions and consider whether it is absolutely necessary to ask the question and at what stage the question should be asked.

Further Reading

Guidance for Employers in Making Reasonable Adjustments

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