According to a recent survey conducted by the law firm Pannone, nearly two third (65%) of employers ask to the best candidates emerged from recruitment processes to fill in a health questionnaire before formally offering these a job. The findings of the investigation also revealed that 48% of employers ask candidates to fill out a questionnaire with the aim of gaining medical details and sickness records.
Since in many cases the routinely use of health questionnaires will be considered illegal from next October, when the Equality Act is due to come into force, legal experts have urged employers who are still using pre-employment health questionnaire to stop using these. Section 60 of the Equality Act will in fact ban companies from asking candidates about medical issues during the recruitment process, unless the information requested are specifically related and pertinent to the position object of the role to be filled. The provision will also prohibit the use of pre-employment health questionnaires before a job offer is made.
Pannone’s head of employment law, Jim Lister, said that employers breaching this regulation may also face investigation on the Equality and Human Rights Commission initiative. Under these circumstances, is due to be adopted the reversal of the burden of proof approach; the basic assumption would thus be that the employer has indeed discriminated against the employee, unless this can show that there were other reasons for the organisation having decided not to select the individual(s) concerned.
Lawyers have also warned organisations, which learn of a candidate’s health issue after the job has been formally offered, that failing to make the necessary adjustments and consequently withdraw the employment offer previously made to an individual may led to considerably increase the risk that these may be brought before a Court (source: Telegraph online, 19 July 2010).
The regulation essentially aims at protecting disabled candidates from discrimination during the recruitment process and impeding employers to require candidates to have a medical assessment prior to formally offer them a job.
Organisations may be allowed to ask candidates health-related questions during the selection process only to find out whether any reasonable adjustments need to be performed accordingly and whether a candidate can perform the activities crucial to do the specific job (for instance, find out whether a candidate can perform a job requiring heavy manual handling). In these instances, the organisation should indeed take practical action accordingly to assist the disabled candidates.
At the moment, it is not completely clear which questions employers will be exactly enabled to ask; nonetheless, questions asking candidates how an impairment would affect them, once having being offered the job, are due to be considered illegal.
Whilst candidates considering of having been discriminated against cannot bring the employer before an employment tribunal, these will be allowed to raise a complaint to the Equality and Human Rights Commission (EHRC), which can subsequently conduct an investigation and potentially fine the employer up to £5,000.
Pre-employment questionnaires, whether submitted to candidates, may be utilised by these as evidence of discrimination during a potential litigation and employers could face disability discrimination tribunal claims for not having eventually recruited a disabled person. As warned above, the burden of proving the contrary will be placed on the employer. Organisations are hence strongly advised to revise their recruitment policies and pre-employment questionnaires accordingly before October 1st 2010.
Employers will be indeed allowed to ask generic questions relating to the applicants health only after the job offer has been formally made. Organisations might also require candidates to undergo a medical assessment and make the job offer conditional upon it.
In the event a job offer has been made and accepted and the employer realises that the new recruit is not fit for the role, the organisation can either put in place the required adjustments in order to put the new employee in a situation to properly perform the job, or if, and only if, there are valid justifications withdraw the job offer.