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Since 1 October, employers have been prohibited from asking questions about an applicant's health or disability either before offering work or short-listing. There are some limited exceptions. Questions are permitted for the following purposes, providing they go no further than is necessary:

• determining whether the applicant is able to undergo an assessment or interview process, or whether any reasonable adjustments need to be made to this;
• monitoring the diversity of applicants;
• ensuring that an applicant who is disabled can benefit from any measures aimed at improving disabled persons' employment rates (i.e. positive action);
• determining whether the applicant has an impairment which is an occupational requirement of the job;
• questions relating to a requirement to vet applicants for national security purposes; and
• determining whether the applicant is able to carry out a function that is intrinsic to the role.

To ensure questions fall clearly within these categories, employers will need to be transparent and specific as to why they are asking them. Although the exception regarding functions that are intrinsic to a role may seem quite broad, it should not be seen as an opportunity to ask generic questions about health. These are likely to go 'further than is necessary' and so take the question outside the scope of the exemption.

In order to focus questions and ensure they are clearly relevant, employers should make a list of what they consider to be the intrinsic functions of a role.Equality and Human Rights Commission (EHRC) has published guidance on the Equality Act referring to functions that are 'absolutely fundamental', suggesting this is not intended to be a wide loophole.

Apart from the intrinsic functions of the job, employers should always be mindful of the duty to make 'reasonable adjustments' for disabled candidates. This is largely unchanged by the Equality Act. Generally speaking, any question about a disabled person's ability to carry out a particular role should be accompanied by a question about their ability to do so with reasonable adjustments in place.

Consequence of Breach

Asking questions about health which go beyond the exceptions above will not in itself amount to disability discrimination. However, if action is taken in reliance on the answers given - for example, an offer is not made or an applicant is not shortlisted - the burden of proof shifts to the employer to show that it has not discriminated on the grounds of disability. Also, the EHRC has the power to investigate and take enforcement action.

Practical effect

The central message is that asking health-related questions before making an offer of employment is risky and should be avoided unless absolutely necessary in the circumstances. There is, however, no prohibition on making a job offer subject to a satisfactory health check. Whilst there is no prohibition on this, employers doing so will of course need to be conscious of the risk of disability discrimination and the duty of reasonable adjustment.

This entry was written by Rebecca Jobling.

Photo credit: VisualField