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Employment Solicitor Paula Chan questioning the health question

By Practice Group Leader, Employment

Paralympic sports will receive an increase in funding of 43% for Rio 2016, following the success of British athletes at London 2012. The Paralympics were applauded for increasing awareness and acceptance of individuals with disabilities and health conditions but will this awareness and acceptance extend to the Employment arena?

The first hurdle for those with health conditions is the application process. Individuals with disabilities, health problems or long periods of absence may, understandably, find applying for new jobs daunting, fearing questions about their health at interview. Some comfort can be found in the Equality Act 2010 however, which prohibits employers from asking job applicants about their health until an applicant has been offered a job or placed in a pool of applicants from which recruits will be chosen.   

That all seems fair and well, but can’t the employer get round this by asking someone else about your health?  

No. A prospective employer is not permitted to ask anyone else, including your former employer, about your health, either directly or through a reference request. Importantly, questions about sickness absence, traditionally found in reference requests, are likely to breach the rules where they relate to disability or health.

That’s reassuring, but won’t clever employers arrange for someone employed by the company or an agent, e.g. a recruitment agent, to ask questions about your health?

Again, the answer is no. Such arrangements also fall foul of the rules.

There are a few exceptions to the rules however;

Health questions can be asked where necessary to work out whether you are able to carry out a function intrinsic to the job. For example, for a job in a warehouse requiring manual handling you could be asked health questions to work out whether you could actually do the job. Questions can also be asked if necessary to work out whether you are able to take part in an assessment or other process designed to see whether you are suitable for the job, i.e. an interview or psychometric testing.

It is also ok to ask health questions necessary for diversity monitoring, taking positive action (positive action is where an employer takes certain steps to assist protected groups which are disadvantaged or under-represented in particular job) or where the Company requires you to have a particular disability. It’s difficult to say when such questions will be “necessary” and this uncertainty is likely to lead to mistakes, disputes and ultimately litigation.
So, what if a prospective employer breaks the rules on heath questions? What can you do about it?

You could make a complaint to the Equality and Human Rights Commission (EHRC). The EHRC has the power to investigate the use of prohibited questions and take enforcement action. This may result in the Company being fined up to £5000. You may also have a disability discrimination claim you can pursue before the Employment Tribunal.

Click here for more information on Disability Discrimination Claims.