Pre-employment health questionnaires
Question - Can we ask applicants when they are interviewed for a new job about their health and fitness?
This has become a rather difficult question as a result of the introduction of the Disability Discrimination Act, which was implemented in full in October 2004. Disability in this context is not limited to obvious serious medical conditions. The Act defines disability as 'a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities'. It is clear that this is open to very wide interpretation.
Best practice in recruitment means finding the best person for the job, based upon the individual's merits and regardless of any disability. This is now a legal requirement and failure to follow best practice could easily end in costly litigation.
You are not obliged to treat someone with a disability or health problem more favourably than you would treat other candidates, but you must make any reasonable and necessary adjustments for disabled individuals. You do not have to employ the disabled person if, after allowing for any necessary adjustments, he or she would not be the best applicant for the job.
It is unlawful for an employer to discriminate against a disabled person
- in the arrangements made for determining who should be offered employment
- in the terms on which the disabled person is offered employment
- by refusing to offer, or deliberately not offering, the disabled person employment.
The Act does not prohibit an employer from seeking information about a disability, but the Data Protection Code of Practice on Employment and Recruitment states that information should not be sought from applicants unless it is necessary to enable the recruitment decision to be made or for a related purpose, such as for equal opportunities monitoring.
An employer should only ask disability related questions if they are, or may be, relevant to the person's ability to do the job after a reasonable adjustment has been made if necessary.
Short-listing on the basis of an applicant's responses to a medical questionnaire may be discriminatory. Even where there are medical requirements which must be met, it is considered good practice for employers not to require job applicants to answer a medical questionnaire until after a conditional job offer has been made.
If an employee discriminates against or harasses a disabled employee, the employer will be liable unless he can show that he has taken reasonable steps to prevent such discrimination. An employee who commits the discrimination or harassment will be liable for aiding an unlawful act. This will be the case even if the employer is able to show he had taken reasonable steps to prevent the act!
Word of mouth and personal preferences have in the past been the basis for many decisions about new employees, but disability and other equality legislation make this a very dangerous practice.
A structured recruitment protocol may seem much more time consuming and inflexible, but will probably provide:
- a means of improving objective decision making
- useful evidence should you be challenged under the Act.