Ban on pre-employment health checks

Section 60 of the Equality Act 2010 introduced a ban on asking pre-employment questions to job applicants about their health, including whether they have a disability and their previous sickness absence record, before they are offered the role.

There are exceptions. In particular:

• asking an applicant whether s/he has a disability before the interview so as to organise reasonable adjustments at interview is still allowed;

• asking whether an applicant will be able to carry out a function intrinsic to the role (once reasonable adjustments have been made) is still allowed; and

• anonymised questions for the purposes of diversity monitoring are permitted, although the information obtained should not be available to the person doing the selecting.

In general, this means that an employer must not ask about a job applicant’s health before offering them employment (on either a conditional or an unconditional basis). The ban also extends to third parties such as assessment centres, recruitment agencies and referees. Once the job offer has been made, it ceases to be unlawful to ask questions about health. However, if an employer asks these kinds of question after having made the offer, for example through a health questionnaire, and then withdraws the offer because the answers reveal the existence of a disability, this would be disability discrimination.

The Equality and Human Rights Commission is responsible for enforcement. (See Chapter 6: Discrimination).