Pre-employment health checks

A further change introduced by the EA 2010 strengthened the position of disabled workers with a record of mental health sickness absence. This is the 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 job. There are some narrow exceptions to the ban. In particular, an employer is allowed to ask a question that is necessary:

• to establish whether any reasonable adjustments are needed to the application process;

• to establish whether the candidate will be able to carry out a function intrinsic to the role, after making any reasonable adjustments;

• to monitor diversity (in which case, information should be anonymised and kept separate from the main application process); and

• to support positive action for disabled people.

More detailed information can be found in LRD’s annual employment law guide Law at work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1664).

Once the offer has been made, a reference request asking about a candidate’s sickness absence record is, in theory, possible, although employers are likely to be discouraged from asking for references in even this limited way, given the increased litigation risk.

Past sickness absence is not a reliable indicator of future performance and in any event, past absence may be due to a previous employer’s failure to make reasonable adjustments, or due to poor working conditions or bad line management, leading to stress-related absence.

Although this prohibition can only be enforced by the Equality and Human Rights Commission it nevertheless remains a valuable tool for workers. If an employer is shown to have asked a prohibited question, the burden of proof in a claim for direct discrimination will then shift to the employer. The fact that an employer has asked these sorts of questions is powerful ammunition in any discrimination claim.