The Equality Act 2010 – one year on

The Equality Act was largely a consolidation of existing discrimination legislation, but it also brought in new provisions which may have been overlooked.

Since 1st October 2010 is has been unlawful to ask applicants about their health prior to offering employment or placing them into a pool of persons to whom employment may be offered.

This is unless the questions are for a specific purpose, for example to determine if special arrangements are required for an interview process, for equal opportunities monitoring or determining whether an applicant can undertake a task which is intrinsic to the role for which they are being considered. As an example, requesting an applicant to undergo a physical test as part of an assessment process. Or, if a role were to involve working with certain chemicals or in a dusty environment, ascertaining whether the applicant has any respiratory conditions.  

Despite this legislation being in force for over a year, the registration processes of a number of agencies still involve medical questionnaires or requirements for detailed health information. These processes are perfectly acceptable if appropriately tailored to the type of work and tasks which may be intrinsic to the role. However, in many cases they simply list a vast number of medical conditions and ailments and ask an applicant whether they have ever suffered from any such conditions. Many agencies also continue to use contracts which require candidates to provide information of this kind.

Asking an applicant about health is not in itself discrimination. However, if an applicant provides such information and is rejected for the job or offered conditional terms, a claim to the Employment Tribunal could be brought based on discrimination. Note there will be a presumption of discrimination and the employer or recruiter will need to take steps to rebut this.

It is for this reason that this type of questionnaire should be avoided unless serving a necessary purpose. In many cases a generic questionnaire is completed and left on file with no specific purpose served, which simply amounts to additional administration. Recruiters are advised to review their registration procedures to ensure that any health questions and questionnaires serve a purpose and do not lead to the risk of a discrimination claim.

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