By Martin Brewer, Partner, Mills & Reeve LLP

Last October the Government brought into force most provisions of the Equality Act 2010 (EqA). One of the more controversial aspects of this new law is turning out to be the prohibition on pre-employment health questions. The law is potentially a minefield and the Act itself is less than helpful, not even specifying what amounts to a ‘health question’.

Section 60 EqA prohibits the employer from asking, other than in prescribed circumstances, job applicants about their health before a job offer is made. This prohibition means you must not ask health questions either directly or indirectly. For example you cannot instruct a recruitment agency to ask health questions on your behalf, and you cannot ask the current employer about an applicant’s health pre-offer.

What is a health question?

The EqA is silent on this but one common question is whether asking an applicant about their sickness absence record amounts to a 'health question'. The Equality and Human Rights Commission’s non-statutory Code unequivocally says it is.

So when can health questions be asked?

It is possible to ask questions about an applicant’s health after a conditional offer of employment has been made. In theory an employer can ask after an unconditional offer has been made, but in the light of this law employers would be unwise to make any unconditional offers.

It is also possible to ask questions after a conditional offer of employment if it is necessary to establish if the applicant can comply with the requirements of the recruitment process. Questions may be asked to establish if an applicant can carry out an 'intrinsic function' of the work or if it is necessary for the successful applicant to have a particular disability.

When is a question 'necessary'?

There is currently no guidance on this but as an example, if you are recruiting to a manual handling role you may well reasonably believe that it is necessary to ask questions to establish whether the applicant is able to do the manual handling (with reasonable adjustments if necessary). But in this case the questions must be limited, and it is not a green light to generally ask health questions.

What is meant by an 'intrinsic function' of the work?

Again the EqA isn't overly helpful about this and it may be more obvious in practice than in theory. Manual handling jobs are a good example of where a function, the manual handling, is intrinsic to the role thus permitting questions about the applicant's ability to carry out manual handling. However the questions must be focused on, and limited to, this matter.

The nature of the questions

If you decide you can ask health questions pre-offer, then you need to be very clear about why you come to this view and what the question(s) should be.

Taking the manual handling role as an example, in order to establish whether the applicant can manually handle the sorts of weights involved in the role you could ask:

1.) Do you suffer from any illnesses or injuries?

2.) Do you suffer from any illnesses or injuries which might prevent you from carrying out this role?

3.) Do you suffer from any illnesses or injuries which might prevent you from carrying out the manual handling aspects of this role?

The first question is too broad and would not be allowed. The second is potentially acceptable although broader than strictly necessary. The third question is more focused and therefore preferable.

Use of medical information from application forms

Many application forms ask for medical information. On the whole this should now be avoided. However, some information is actually quite important to know pre-recruitment.

For interviews the most you should do is say on the application form something like "Please contact us if you are disabled and need any adjustments for the interview".
for a recruitment process which will involve practical tests ask something like: "The assessment process we undertake for this role will include a practical test involving [xxx]. Please contact us if you have any injury or impairment which might adversely impact on your ability to take this test so that we may consider adjusting the process in your case".
for roles where a particular level of fitness is intrinsic then, as above an appropriate question is: "Do you suffer from any illnesses or injuries which might prevent you from carrying out the manual handling aspects of this role".

Two other issues arises from this. First any aspect of the application form dealing with health should be separate or detachable from the rest of the application form and those undertaking shortlisting should not be aware of the questions and answers given.

Second, it is probably a useful step to separate those undertaking the interviews/assessments from those who undertake the shortlisting so that there's no possible allegation of 'contamination' although this may be difficult and undesirable in practice.

Training staff involved in recruitment

One final thing to mention is training. Those involved in recruitment need to be aware of these issues because in practice it's quite easy to fall into the trap of asking health questions during an interview. For example:

Say a CV shows a gap of 6 months. The interview might go like this:

“Q:I see that for 6 months in 2009 there's nothing to say what you were doing before you started your current job

A:Unfortunately I had a spell in hospital

Q:Sounds serious?

A:Yes I had xx but I'm recovered now

Q:That must have been horrible, how easy did you find going back to work?”

It seems innocuous but arguably this is, or at least may lead to, a discussion about health and could well fall foul of the law. We need to raise awareness about this and how to deal with the issue if the applicant volunteers information about their health.

This new law is manageable but it does represent a significant change in recruitment practise which all those involved in recruitment need to be aware of.

To contact Martin Brewer, please telephone: 0121 456 8357, or email: martin.brewer@mills-reeve.com. www.mills-reeve.com.