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Job Applicants and the Question of Health
Adrian Fryer
A prospective employer’s obligations under Equality Act 2010 kick in before they are even an employer. This is because job applicants are protected from discrimination under Equality Act 2010. It is important that employers are aware of this and that recruitment practices are not in any way discriminatory.
One key area in this regard is the question of health. All employers, if given the option, would want to recruit a healthy employee. But asking questions about health can give rise to the risk of a disability discrimination claim.
The general position under the Equality Act 2010 is clear: prospective employers are not allowed to ask questions about an applicant’s health prior to making a job offer.
There are exceptions to this general rule. Employers are permitted to ask questions:
- To enable adjustments to be made to the interview and selection process itself
- To find out if the applicant can carry out an intrinsic part of the job. For example, if the role would involve working at height, you would be able to ask health questions which allowed you to ascertain whether the employee had any medical issues which might impact on their ability to work at height.
The best way to find out whether an applicant needs any adjustments to the interview process itself is to ask them. The Equality and Human Rights Commission suggests that the following wording should be included in recruitment materials: ‘Please contact us if you need the application form in a different format or if you need any adjustments for the interview’.
A failure to do this, or to give due consideration to the issue if the employee raises one, risks a claim for failure to make reasonable adjustments.
This was illustrated in the case of Mallon v AECOM. Mr Mallon had dyspraxia. He applied for a role with AECOM for which he was required to fill out a paper application. He asked if he could complete the form orally owing to his condition. AECOM, on notice of his dyspraxia, told him to put his difficulties in an email. It said that it could assist Mr Mallon, but that completion of the form was required.
The employment tribunal concluded that a reasonable employer, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form, would have telephoned that individual to ask for more details about his difficulties. The employment tribunal gave the opinion that, given the applicant’s difficulties with written communication, it was not reasonable to expect him to explain these matters in an email.
Once you have made a job offer, you are able to ask health questions. You are even able to make the job offer conditional on completion of a health assessment. However, you need to be very careful if, on receipt of medical information, you decide to withdraw the job offer.
If a health issue comes to light at this stage, before making any knee-jerk decision, you should consider whether the health issue impacts on the person’s ability to do their role. You should also explore and document any adjustments which might be able to be made to the role to enable them to do it.
The duty to make reasonable adjustments is in play and, if you withdraw the offer without first investigating whether any adjustments are available, you are at high risk of a claim being made against you.