The Equality Act 2010 came into force last October and looked to address problems of discrimination in the recruitment process.  It makes it unlawful for an employer to ask questions about a job applicant’s health before short listing them for selection or offering them a position. This includes any disabilities or impairments they may have.

What this means is that if you ask a job applicant questions about their health and they are then unsuccessful, you could face a claim, especially if the answers highlight that an applicant had, or continues to have, health problems. It’s up to you as an employer to prove that the candidate’s application failed for reasons other than the answers they gave to a health questionnaire.

The use of standard medical questionnaires for all applications, which ask a whole host of questions about a person’s past and current medical situation, may leave employers open to legal claims and they will have to be more selective with questions about health and illness. It’s advisable to check the wording and content of existing questionnaires and take legal advice from employment law experts.

This doesn’t mean that employers can’t ask any questions about health and disability before offering work, and the Act outlines a number of situations where you can ask questions, including to:

• obtain data for equal opportunities monitoring.
• assess whether you need to make reasonable adjustments as part of the interview process or which would enable a disabled applicant to do the job.
• find out whether the applicant can carry out key parts of the job, e.g. heavy lifting.

There is nothing to prevent you from asking health questions after or at the same time as an offer of employment is made, and indeed, you may need to do so to comply with your obligations to make reasonable adjustments.

The message is you can use health questionnaires but be careful with the circumstances in which they are used.  If you require more information, Ian is available to help you.