Pre-employment health questionnaires

Under the new Equality Act, which comes into force in October, prospective employees will no longer be expected to declare medical issues unless they are specifically related to their job role, for example to check a candidate can perform an “intrinsic function” of the job such as heavy lifting.

It will mean those with mental-health issues, a medical condition or a disability will not be forced to disclose their condition prior to the offer of employment, unless it hinders their ability to do the job.

As a result, the use of medical questionnaires, unless they were role-specific, should not be used after the Act came into force.

It was likely that questions relating to a candidate’s sickness record will also fall foul of the law, and organisations that learn of an individual’s health issues after making a job offer but fail to make reasonable adjustments or withdraw the job offer could be subject to litigation.

Key points:

• Employers who ask candidates about their health pre-job offer will be required to prove at tribunal that they did not discriminate against the individual if they did not get the job.
• Employers who ask candidates about their health post-job offer, who then discover they are not fit for the role, can make reasonable adjustments or justify their need to withdraw the job offer.