From October 2010, employers are restricted in what enquiries they are allowed to make about health and disability before making a job offer.
- These rules restrict enquiries about health and disability before a job offer.
- To be permitted, enquiries must fall within a list of exceptions.
Outline of the rules
This is a new provision in s.60 EqA. The idea is that in a recruitment process, enquries about health and disability should happen only after a job offer is made, unless the enquiries fall within particular exceptions.
The job offer may be conditional on medical clearance for example. Any enquiries can be made after the conditional offer. The employer can withdraw the offer if a disability means the candidate is unsuitable, after considering any reasonable adjustments. However, it will then be evident that disability was the reason for turning down the applicant, and the legality of that can be considered.
It was previously possible for an employer to ask at the job application stage whether the candidate had a history of mental illness, for example. The employer might then in practice just not take the application of a disabled person forward, without it being clear why.
There are some important exceptions where health/disability enquiries are allowed before a job offer. The exceptions include, for example, enquiries necessary for the purpose of establishing -
- whether reasonable adjustments will be required for the interview, or
- whether (after reasonable adjustments) the applicant will be able to carry out functions intrinsic to the work.
Subject to the exceptions, the ban in s.60 applies to enquiries in application forms, in medical questionnaires (if before a job offer), as well as to questions at the interview itself.
As well as after a job offer, enquiries may also be allowed after the applicant has been put into a pool pending job availability.
Individuals cannot directly enforce s.60. However, if the employer breaches it and the applicant claims direct discrimination, the burden of proof shifts to the employer. Otherwise, the Equality and Human Rights Commission has powers to enforce s.60.
Communication disabilities and s.60
S.60 will apply to communication as to other disabilities. However, since communciation disabilities are more visible in the recruitment process, s.60 is not likely to be as important for communication impairments as it is for eg mental health disabilities.
In particular, a communication impairment will often be apparent at the job interview. Also an employer will be made aware of the disability if a person seeks reasonable adjustments to the recruitment process.