Ban on pre-employment health checks 





There is a ban on asking pre-employment questions of job applicants about their health, including whether they have a disability and their previous sickness absence record, before offering a role (section 60, EA 10). There are some specific exceptions, in particular: 





• asking about disability to organise reasonable adjustments to the application process is allowed;



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





• anonymised questions for diversity monitoring are allowed but the results should not be available to the person doing the selecting. 





In general, this means an employer must not ask about a job applicant’s health before offering employment, on either a conditional or an unconditional basis. The ban covers third parties such as assessment centres, recruitment agencies and referees. 



Once a job offer has been made, it is no longer unlawful to ask questions about health. However, an employer who asks health-related questions and then withdraws that offer when the answers reveal a disability risks a claim for disability discrimination (see, for example, Pnaiser v NHS England [2015] UKEAT 0137/15).





The ban is enforced by the Equality and Human Rights Commission (EHRC). Statutory guidance and examples of pre-enforcement work policing the ban are published on the EHRC website (see also Chapter 7: Discrimination).





https://www.equalityhumanrights.com/sites/default/files/pre-employment_health_questions_for_employers.pdf