A long-standing component in the recruitment process, the use of pre-employment health questionnaires is set to undergo radical change. From October, employers should avoid asking any questions about heath until after they have decided whether a candidate is otherwise appointable to a role. While employers will still be entitled to ask some questions about a candidate's health in limited circumstances before shortlisting or appointment, for instance, to enable them to establish ahead of the interview if any particular access needs are required by an interviewee, such as a wheelchair ramp, generally all medical issues should be dealt with at the end of the process.
Any questions about reasonable adjustments necessary for the interview stage should also be kept apart from the main job application, to avoid influencing any decisions on whether to invite a person for interview. Therefore, questions, such as ‘how many days sickness absence have you had in the last year’, should be also be avoided prior to shortlisting. Employers who wish to monitor applications for vacancies, for instance, for the purpose of taking positive action, should ensure that any monitoring forms are kept apart from the main application form. Questions on application forms should concentrate on information that is relevant to a person's ability to do the job in question, rather than for instance, dates of birth or other dates.
The Act does not prevent employers carrying out medical screening after a job offer has been made. Where a particular issue has been identified, the employer will be obliged to make reasonable adjustments if this is possible. However, in cases where it would not be possible to make reasonable adjustments to the role or the workplace to allow the person to carry out the duties, the employer may be entitled to withdraw the offer. Employers should consider their obligations in terms of reasonable adjustments carefully and document the thought processes involved. If a job offer is withdrawn for a reason relating to the candidate's disability, the employer will be at risk of a disability discrimination claim. To defend such a claim, the employer will need to demonstrate that it has followed a reasonable process.
The potential penalties facing employers getting it wrong are severe, including litigation and the prospect of an investigation by the Equalities and Human Rights Commission. To ensure compliance with these requirements, employers should review existing application forms and the recruitment processes itself. Where possible, those responsible for making interview arrangements should be different from those shortlisting to ensure any issues relating to candidates' disabilities do not influence the shortlisting process.
The Act is making other changes to Disability Discrimination provisions, which are likely to make it easier for people to demonstrate that they are disabled. In addition, new concepts of indirect disability discrimination, and discrimination arising from disability are being introduced, partly to deal with the difficulties associated with the House of Lord's decision in the case of London Borough of Lewisham vs Malcolm [2008] IRLR 700. In particular, this move is ‘aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment’.
The individual provisions of the Equality Act will be phased in over an extended period of time, with a significant tranche coming into effect from 1 October. In the longer term, the Act is set to create greater cohesion and offer a more manageable legislative framework from which to safeguard equality. In the short term, however, the challenge for employers will be firmly focused on updating existing policies and documentation, alongside the introduction of strategies to ensure compliance.
Amanda Jones is a partner and head of employment, with Maclay Murray & Spens
