OCCUPATIONAL HEALTH
Take care with pre-employment health questions
Employers who think they’re asking sensible questions to protect the health and safety of new recruits are invariably breaking the law. What are the findings of a recent study and why should you be concerned?
Changed law
The Equality Act 2010 came into force in October 2010. Section 60 states, “A person to whom an application for work is made must not ask about the health of the applicant before offering work.” However, there are some minor exceptions to the rule, one of which is that questions can be asked to establish whether the candidate will, “be able to carry out a function that is intrinsic to the work concerned”.
Where’s the line drawn?
Whilst those who drew up the legislation might have thought it was foolproof, there’s way too much scope for interpretation. You might think that some jobs have an intrinsic need for certain health characteristics, but a court could disagree.
Tip 1. In order for you to be allowed to ask questions about physical capabilities etc. you must be able to prove that the particular aspect of the job couldn’t be managed through “reasonable adjustments”, i.e. changing the task.
Tip 2. Even if someone comes into your interview room with an obvious limp, try to ignore it. You might think you’re just being helpful but you could find yourself on the receiving end of a discrimination claim. Remember that you can make an offer conditional on medical checks without being in breach of s.60.
Tip 3. As we’ve mentioned previously, this issue is a hornets’ nest . If you decide to ask specific health questions before offering work, or if you want to withdraw a job offer on health grounds, you need evidence to back it up. Keep notes of everything that happens and take advice from an HR professional.
At HS&Q Management Associates I understand the business challenges that small - medium size businesses owners are facing in today’s climate; It is easy to appreciate the difficulties in trying to…
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