Disability

by Kate Russell

Pre-employment medical questions

The Equality Act 2010 introduced a ban on the use of pre-employment health questionnaires except in very limited circumstances. The aim was to reduce the potential for discrimination at the application stage, where it was felt that all too often unjust assessments were made based on disclosed medical conditions (especially mental health conditions) that unfairly prevented suitable applicants progressing to interview.

An employer cannot ask about the health of the applicant before work is actually offered, unless specific criteria are met. Pre-employment health questions can be asked, but only in limited circumstances. These include a situation where you:

  • need to establish whether the employee is fit to undergo an assessment, or whether you have a duty to make reasonable adjustments in connection with an assessment
  • need to establish whether the job applicant will be able to carry out a function that is intrinsic to the job concerned
  • wish to undertake diversity monitoring
  • are considering taking positive action in relation to disabled persons

In some cases there be a genuine requirement of the job that the employee has a particular disability.

Any questions you put must be asked with a view to establishing whether or not the candidate will be able to carry out a function that is intrinsic to the work concerned. The explanatory notes to the act give the example of a candidate who applies for a warehouse job that requires manual lifting and handling of heavy items. That said, exercise caution. You should only ask questions that relate to the candidate’s ability to perform the core duties of the role and restrict your questions to those that are necessary, for example by asking whether the candidate suffers from any health problems that might prevent them from performing the particular function in question, rather than sending them a general medical questionnaire.

The employer would not be permitted to ask a candidate other health questions until they were offered the job.

You should make enquiries to find out whether or not a candidate requires reasonable adjustments to be made to the assessment process, for example to allow a candidate with a speech impairment more time at interview. A failure to make reasonable adjustments at the recruitment stage can result in a claim being made.

Example

Terri Brookes was diagnosed with Asperger’s syndrome whilst studying for a degree in law at Sussex University. In 2012, she completed her law degree and applied for a trainee solicitor post with the Government Legal Service (GLS).

When Ms Brookes applied, she requested reasonable adjustments on the grounds of, among other things, her Asperger’s syndrome.

The GLS informed Ms Brookes that whilst an alternative test format was not available they made adjustments by giving time allowances and a guaranteed interview scheme for those who passed the three required tests.

One of the tests Ms Brookes was required to sit was a multiple choice Situational Judgement Test (known as SJT). This was an online test with no time limit. Before taking the test, Ms Brookes expressed her concern at the format and her ability to take part due to her disability, but despite this she took the test and did not pass, she scored 12 when the pass mark was set at 14.

The SJT test is multiple choice and there are objectively right or wrong answers to the questions which are marked by a computer. Ms Brookes argued that because of her Asperger’s she was disadvantaged by the multiple-choice test and a reasonable adjustment would have been for the GLS to allow her to answer in short narrative written answers.

The GLS submitted that there was no evidence to justify the adjustment or that the multiple-choice method put Ms Brookes or others with Autistic Spectrum Conditions at a disadvantage. They further said the defence that the method of testing was justified as a proportionate means of achieving a legitimate aim of recruiting the best candidates.

The Employment Appeal Tribunal rejected the GLS appeal and decided that the GLS had indirectly discriminated against Ms Brookes by failing to make reasonable adjustments to their recruitment process and she had been treated unfavourably because of something arising in consequence of her disability.

The ‘Provision, Criterion or Practice (PCP)’ being the requirement to undertake the SJT test was substantially more difficult for Ms Brookes to pass as a result of her Asperger’s and adjustments should have been made by the GLS.

In this case, the issue could have been simply resolved by allowing Ms Brookes to take the test and be assessed in a different format. The GLS had a system in place for reasonable adjustments, but it would seem it was a ‘one size fits all’ approach to adjustments which clearly did not take into consideration individual conditions. If you are recruiting and you have tests or assessments then consider how these may impact those with disabilities. Consider how you would provide information and application forms, for example, if you had a candidate with a disability.

Questions about reasonable adjustments needed for the job itself should not be asked until the job offer has been made.

You can make job offers conditional upon satisfactory health checks or medical questionnaires. If you decide to withdraw the offer as a result, make sure you are not discriminating against the candidate. If the candidate has a disability, it will be risky to withdraw the offer unless it is clear that the health issues identified mean that the candidate would be unable to carry out the role after any reasonable adjustments have been made.

If you ask inappropriate pre-employment questions and an unsuccessful candidate brings a direct disability discrimination claim, the onus will be on you to show that no discrimination took place. The Equality and Human Rights Commission may also investigate if inappropriate questions are being asked and take enforcement action.

If a candidate voluntarily discloses information about his health or disability during an interview, you must be careful not to ask any questions in response unless they fall within the permitted exceptions. If the candidate attempts to discuss reasonable adjustments that they may need to do the job, you should tell them that this is something that will be discussed with the successful candidate once the job offer has been made.

Once a job has been offered and accepted, you can ask additional medical questions (although you will still need to take care how that information is used). If a condition is revealed that causes the candidate problems in performing the job, then you must consider making reasonable adjustments. If there are no reasonable adjustments, then the job offer may need to be withdrawn. There is clearly scope for claims here, so any adjustments must be very carefully considered. If none are viable, the employer must have an objective business reason to withdraw the role.