This time the experts, Esther Smith and Adam Partington advise on asking questions regarding health on an application form.

The question: Disability discrimination questions…

Would we be in contravention of the DDA by asking applicants the following question on an application form?

"Do you consider yourself to have a disability?

Yes/No

Please state the type of impairment which applies to you. People may experience more than one type of impairment, in which case you may indicate more than one. If none of the categories apply, please mark ‘Other’."

My thinking is that we need to be more specific in the question, i.e. ‘Do you have any impairment that would require us to make adjustments, if selected for interview?

Legal advice:
 

Adam Partington, solicitor, Speechly Bircham

The Equality Act 2010 made it unlawful to issue pre-employment medical questionnaires before offering employment. Prior to offering an individual a job, health related questions can be asked only if necessary to:

a)    help decide whether there is a need to make reasonable adjustments to the selection process;
b)    help decide whether an applicant can carry out an essential part of the job;
c)    monitor diversity amongst applicants;
d)    take positive action to help disabled people;
e)    ensure that an individual has a disability where there is a genuine requirement to have a disability (for example, a mental health counsellor being required to have experience of mental health);
f)    vet individuals for the purposes of national security.

Guidance in the Equality and Human Rights Commission Statutory Code of Practice suggests that in your application form you ask the applicant to notify you if they are disabled and need adjustments to be made for the recruitment process.

A request for personal information of this kind should be on a separate page of any application form and be easily detachable from the rest of the application form or be requested separately from the main application form.

This applies equally to hard copy and online applications. You should state why the information is required and assure the applicant that the information is not part of the recruitment process and will be treated in strictest confidence.

Any information provided about the disability should be withheld from the people who are short-listing or interviewing to ensure that it does not influence their decision. 

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Esther Smith, partner, Thomas Eggar
 

The Disability Discrimination Act 195 has now been amalgamated within the provisions of the 2010 Equality Act (EA), and the issue of pre-employment health questionnaires was one of the areas which gained a lot of press coverage in the lead up to the enactment of the new provisions.

Under the EA there is a prohibition on using pre-employment health questionnaires, which would include your proposed enquiry above. This ban does not apply to questions asked “with a view to establishing whether or not the applicant will be able to carry out a function that is intrinsic to the work concerned”, but your wording is sufficiently wide as to fall foul of this. It is also worth noting that there is no prohibition upon use of medical questionnaires post job offer.

Therefore, in order to avoid falling foul of these provisions, you may be better off not asking any questions of this nature on your application form. If you interview someone and wish to offer them employment, then there is no reason why you cannot raise health enquiries post-offer.

The purpose of the provisions is to prevent employers making decisions on whether to offer people employment based on their health or disability. However once an offer is made, you can make reasonable enquiries into their health.
 

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.