The Equality Act 2010 and pre-employment medical assessments

Dr Seamus Dagens, Consultant Occupational Physician, PMI Health Group

Introduction

The Equality Act comes into force on the 1^st October 2010 (1). The purpose of this legislation is to update, simplify and strengthen previous anti-discrimination legislation in order to protect the rights of individuals and advance equality of opportunity for all.

It applies to 9 protected characteristics i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The Act has 16 parts. Part 5 deals with matters relating to employment.

Pre-employment medical assessments

Part 5 of the Equality Act contains provisions restricting the circumstances in which potential employees can be asked questions about disability or health.

The Act makes it unlawful (except in specified situations) for an employer to ask about a job applicant’s health or disability until that person has been either offered a job (on a conditional or unconditional basis) or been included in a pool of successful candidates to be offered a job when a suitable position arises.

Questions relating to previous sickness absence are considered to be health related and are therefore prohibited.

This covers all forms of enquiry i.e. verbal or in writing, regardless of whether it is conducted directly by the employer or by a third party on the employers behalf e.g. an Occupational Health service.

The specified situations where health-related enquiries can be made at the pre-selection stage are for the purposes of:

finding out whether a job applicant would be able to participate in an assessment to test his or her suitability for the proposed role
making reasonable adjustments to enable the disabled person to participate in the recruitment process
finding out whether a job applicant would be able to undertake a function that is intrinsic to the job, with reasonable adjustments in place as required
monitoring diversity in applications for jobs
supporting positive action in employment for disabled people
enabling an employer to identify suitable candidates for a job where there is an occupational requirement for the person to be disabled.

Once a conditional job offer is in place or the applicant is included in a pool of successful candidates to be offered a job when one arises, it is permissible to conduct an appropriate pre-employment medical assessment as before.

Practical examples ⁽²⁾

The Equality Act limits the circumstances when you can ask health-related questions before you have offered the individual a job. Up to this point, you can only ask health-related questions to help you to:

decide whether you need to make any reasonable adjustments for the person to the selection process

A newspaper is recruiting for a receptionist. The newspaper’s application form asks health questions. These are removed to prevent them being considered at this stage. The newspaper still asks applicants if they require any reasonable adjustments to the interview process to ensure everyone can give of their best during the meeting. However they do not take this information into account when deciding who to employ.

decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job

If the newspaper has a job that requires a lot of heavy manual handling, they could ask a candidate with a mobility impairment whether they could manage handling heavy goods. However, the newspaper would not be able to ask the person how their impairment would affect them in getting to the workplace, because this is not something that is intrinsic to the job itself.

monitor diversity among people making applications for jobs

A telemarketing company, which has a small proportion of disabled people working for it, may decide to ask applicants to state whether they have a disability, so that it can see whether its advertisements are reaching disabled people.

take positive action to assist disabled people

The telemarketing company wishes to improve disabled people’s chances of being selected for its vacancies. Therefore it offers guaranteed interviews to disabled people. In order to identify disabled people, it asks on the application form whether the candidate has a disability, and makes clear why the question is being asked.

assure yourself that a candidate has the disability where the job genuinely requires the jobholder to have a disability

A counselling service for people with mental health conditions requires a counsellor who has personal experience of mental health conditions. The Service advertises for candidates who have such a condition, it is allowed to ask at interview for the person to confirm that they have the condition.

Once a person has passed the interview and you have offered them a job (whether this is an unconditional or conditional job offer) you are permitted to ask appropriate health-related questions.

What to do now

This new legislation will have an effect on businesses everywhere. As a consequence, it is essential to conduct a thorough review of all existing recruitment processes and consider whether you’ll need to amend documents or provide training to your recruitment personnel to ensure they are fully aware of the implications of the new legislation.

If you wish to discuss this or any other aspect of your Occupational Health needs please contact the Occupational Health Department at PMI Health Group.