Equality Act Tutorial 3

Hello, how are you? - Don't ask!

Here we look at how the Equality Act gives new protection for job applicants with disabilities and for those with a history of mental illness 

What does the Equality Act do to protect job applicants with a disability?

Simply - the Equality Act makes it unlawful for employers to ask job applicants health-related questions before making an offer of employment (there are some limited exceptions - see below).

Why does it do this?

Although people with disabilities have enjoyed protection from discrimination for many years, it was felt that many of these people were excluded from the job market altogether due to some employers automatically refusing to shortlist applicants who appear to have medical history they might see as problematic.  This also applied to people with a history of mental illness, who would often find that they simply were not even getting over the first hurdle of getting job interviews.

What sort of things can't I ask?

You should avoid sending out pre-employment medical questionnaires to job applicants.  You should also avoid asking third parties, such as referees, to provide information about the candidate's health and absence record if you ask for references before making a job offer.

In addition, verbal questions asked during a job interview about an applicant's health, health history and absence record should all be avoided.

But I need to know an applicant is physically strong enough to do the job!

The Equality Act does contain some exceptions to the "don't ask" rule, but as an employer you need to be able to legally justify why you have asked the question, so it's best to take legal advice first.  Permitted reasons include:

• A genuine, job-related, reason
• to monitor the diversity of job applicants; and
• to establish whether any reasonable adjustments are required to allow a disabled person to take part in the recruitment process.

Is there anything I need to do now?

Yes - do the following:

1. Review your recruitment processes and check that you are not routinely sending out medical questionnaires for applicants to complete before an offer of employment has been made.
2. Make any job offer conditional upon receipt of satisfactory medical information - and send out any medical questionnaire with the conditional job offer.
3. Make sure everyone in your business involved in the recruitment process is made aware of the changes and know what questions they can and cannot ask applicants at interview.