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Due to the large amounts of phone calls this month relating the health questionnaires we have decided to provide some information on the topic.
The Equality Bill generally prohibits the use of pre-employment questionnaires, although there are some exceptions. These are set out in Section 60(6) of the Bill. Amongst the 5 exceptions is:
S(60)(6)(b) establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned.
This exception is the one that is likely to have most relevance for employers but it is a narrow exception.
Therefore, I would only advise the use of a pre employment questionnaire intended to fall within this exception where:
1) There is a genuine requirement for the employee to carry out a task of a physical nature.
It would not normally be appropriate to use a questionnaire where the work is office based, or where there are no tasks that are particularly physical. The first stage in considering the use of the questionnaire is to establish what the requirement is (e.g. heavy lifting, running, 20/20 eyesight etc). There should be some evidence that this requirement is genuine, and not simply a speculative requirement.
2)That task requiring the physical work is essential to carry out the job.
If the task resulting in the requirement is not essential, or it could be assigned to a different employee, or is not required to be carried out very often, it would not normally be appropriate to use the questionnaire. For example, even if there is some physically demanding work involved, I would advise carefully considering whether the use of a questionnaire is appropriate if it is possible that they could do most of the job without carrying out the physical work. Therefore, after you have established what the requirement is, you need to consider how important it is that the applicant can fulfill it.
3) The requirement is a proportionate means of achieving the aim.
This means that it is important to carefully consider whether the requirement is the best way to achieve the task. For example, if you are stipulating that the applicant must have 20/20 vision due to the work being technical and intricate you would need to be sure that the requirement for 20/20 vision was proportionate - consider the consequences of an employee without perfect vision carrying out the task – if there would be no serious consequences the requirement for 20/20 vision is not likely to be a proportionate requirement.
4) The questions are designed to ascertain whether there may be a problem in carrying out the particular task.
Therefore, it would not be appropriate to ask questions that will not relate to the particular task in question. For example, it would not be advisable to ask a question about skin problems such as eczema if the task that the questionnaire related to is heavy lifting. This means that it would not normally be appropriate to have a standard format for the questionnaire asking a series of general questions. The questions should be relevant to the specific task necessitating a particular requirement that you have established as being a genuine requirement that is essential to carry out the job.
It is worth noting that any questions should be designed to ascertain current ability to carry out the task. Therefore, questions asking about past health issues are likely to fall foul of the Act. I would recommend steering clear of questions starting with ‘have you ever …..’ and replacing them with ‘do you …’
As a very simple example, the Act’s explanatory notes state that a questionnaire may be relevant where "An applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job."
When considering whether to use a pre-employment questionnaire it is worth bearing in mind that while asking an applicant health questions will not in itself amount to discrimination against a job applicant, acting on the answers may well do. Where an unsuccessful job applicant brings a direct disability discrimination claim, and the employer asked a pre employment health question for a non-prescribed reason, the burden of proof will shift automatically to the employer to show that no discrimination took place.
In addition, the EHRC will be able to take enforcement action in relation to prohibited questions even where no discrimination is alleged to have taken place.
This prohibition only relates to pre-employment questionnaires. Once an applicant has been offered a job, an employer can ask questions relating to health in order to ensure health & safety obligations are being met, that appropriate reasonable adjustments are met etc.
If you find that you still require more information or guidance on this matter please contact our advice helpline on 01224 701383.
With the cold weather still looming about, construction union UCATT are warning construction employers that extra checks need to be made on sites, to ensure that work can be conducted safely, during the current extremely cold weather.
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