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Recruitment Policies and the Equality Act

23 November 2010

In order to protect job applicants with a disability from discrimination during the recruitment process, Section 60 of the Equality Act 2010 prohibits the use of questionnaires on an applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.

The measure, which comes into force on 1 October 2010, does not prevent employers from asking job applicants any questions about their health but stipulates that they will only be allowed to do so for the purpose of:

  • deciding whether they need to make any reasonable adjustments to enable an applicant to participate in the selection process;
  • deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned;
  • monitoring diversity amongst those applying for jobs;
  • taking positive action to assist disabled applicants; and
  • establishing whether the applicant has a disability where this is a genuine requirement of the job.

It will be important to make clear why a particular question is being asked and how the information will be used.

Once a person has been offered a job, whether this is an unconditional or a conditional offer, the employer is permitted to ask appropriate health-related questions and require a medical assessment where this is normal practice for all applicants.

If a candidate thinks a prospective employer has acted unlawfully by asking questions that are prohibited, he or she can make a complaint to the Equality and Human Rights Commission (EHRC). The EHRC will have the power to investigate and take enforcement action where necessary. A serious breach could result in a fine of up to £5,000.

If an employer uses a pre-employment health questionnaire, a disabled job applicant who is unsuccessful may bring a claim of disability discrimination, using the questionnaire as evidence in support of his or her claim. It will then be up to the employer to prove that there was a non-discriminatory reason for not offering that person the job.

ACAS has published a quick start guide for employers on changes introduced by the Equality Act 2010. This can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=2833&p=0.

For advice on ensuring your policies and procedures comply with the Act, contact Warners.

For more information on this subject or any other legal matter,
please contact us:

Tonbridge: 01732 770660
Sevenoaks: 01732 747900
Email: marketing@warners-solicitors.co.uk