Pre-employment questions about a job applicant’s health

Section 60 of the Equality Act 2010 is expected to come into force in October 2010.

General Rule

The section states that it is unlawful for an employer to ask questions about a job applicant’s health before they are offered a job (on a conditional or unconditional basis) or included in a pool of shortlisted job applicants to be offered a job when a suitable vacancy arises.

Exceptions

However, it is lawful for an employer to ask such a question before the job applicant has been offered a job or shortlisted - if the question is being asked for the purpose of:

• Making a reasonable adjustment to enable the job applicant to participate in the recruitment process, e.g. asking a job applicant who has been invited to attend an interview/test if they would like any reasonable adjustments.

• Establishing whether the job applicant will be able to carry out an intrinsic job function, e.g. if the manual lifting of heavy items is an intrinsic job function – the employer may ask questions about the job applicant’s health to establish whether they are able to do the job (with reasonable adjustments for a disabled job applicant, if required).

• Equal opportunities monitoring.

• Supporting positive action in employment of disabled people.

• Identifying a suitable job applicant where there is a genuine occupational requirement for the job holder to be disabled.

• National security vetting.

Update [2 August 2010]

Further information about health or disability questions can be found on pages 73 - 76 of the guide entitled What equality law means for you as an employer: when you recruit someone to work for you.

The guide will come into force on 1 October 2010.