Ban on pre-employment health checks

The Equality Act 2010 introduced a ban on pre-employment questions to job applicants about their health, including whether they have a disability, and about their previous sickness absence record, before they are offered a role. Once the offer has been made, a reference request asking about a candidate’s sickness record is, in theory, permissible, but employers are likely to be discouraged from engaging in this practice, given the increased litigation risk.

There are exceptions to the ban:

• asking an applicant whether s/he has a disability pre-interview for the purpose of organising any reasonable adjustments for the interview process is permissible;

• requesting information about disability for the purposes of diversity monitoring is allowed, although this information should not be available to the person carrying out the candidate selection;

• asking whether an applicant will be able to carry out a function intrinsic to the work (once reasonable adjustments have been put in place) is permitted;

• where having a particular disability is a requirement of the work (for example in the context of a supported employment scheme) establishing that the candidate qualifies for the scheme is allowed; and

• health questions are allowed in the context of national security vetting.

This prohibition can only be enforced by the Equality and Human Rights Commission. Even so, it is a helpful development for workers, as it should strongly discourage employers from asking inappropriate questions about a candidate’s previous health record.