The Equality Act comes into force on the 1st October 2010. In the run up to its introduction we will be looking at some of the interesting features of the Act. One issue the Act standardises is the concept of ‘perceptive discrimination’
Pre-employment enquiries about health issues are thought to be one of the main reasons why disabled job applicants often fail to reach the interview stage. When the Equality Act comes into force, an employer should not ask about a job applicant’s health (including any disability) before offering him or her work.
An employer does not commit an act of disability discrimination merely by asking about a job applicant’s health, but the employer’s conduct in reliance on information given in response may lead a tribunal to conclude that the employer has committed a discriminatory act. It’s a bit like asking a woman applicant if she is thinking of starting a family. The employer may not offer her the job for a perfectly legitimate reason, but will be vulnerable to a discrimination claim as a result.
This is not quite a blanket ban on pre-employment health enquiries, however. The Equality Act does not apply to questions that are necessary to establish whether the job applicant will be able to comply with a requirement and to undergo an assessment (such as someone applying for a job as a fireman). Health checks can be carried out once the job offer is made.
The employer is also entitled to ask questions necessary to monitor diversity in the range of job applicants; or to establish whether the applicant has a particular disability, where having that disability is an occupational requirement.
It’s a good idea to check that your application forms don’t include questions about medical conditions, and that you don’t ask them in the interview. However do continue to ask whether the job applicant has any special requirements you need to bear in mind prior to the interview.
James Carmody
http://www.reculversolicitors.co.uk/
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