The question
Can the following questions legally be asked on a standard application form to be filled in during the interview stage and before a job offer is made?
- Are you able to attend your main place of work for the hours applicable to the specific job applied for?
- Are you aware of any circumstances that would regularly prevent you from attending your main place of work for the hours applicable to the specific job applied for?
- Are you able to work away from home for long periods at minimum notice as and when required?
- Do you have any unspent criminal convictions?
The first three questions are aimed at ensuring that prospective applicants are honest about their ability to turn up for work every day. But would these questions be deemed unfair under the Equality Act?
The legal verdict
Esther Smith, a partner at Thomas Eggar
When employers are deciding to whom they should offer employment, they should be aware that it is unlawful to discriminate against or victimise a person on the grounds of their age, sex, gender reassignment, sexual orientation, religion or belief, race, marital status, pregnancy or maternity or disability. Therefore, any questions asked on an application form should be relevant to the job being applied for (so that you can justify asking them).
Moreover, any responses that indicate the applicant may fall within one of the above ‘protected classes’ should not be relied upon when making an appointment decision, except in rare instances where they can be objectively justified, for example, asking about and relying on a candidate’s ability to lift heavy objects if they are applying to be a scaffolder.
Questions 1 & 2:
These questions are essentially different ways of asking the same thing – are you going to be able to turn up to work each day? The question itself may be discriminatory as stressing the importance of attending work every day may deter members of a protected class from applying for the job such as pregnant applicants who may require time off for maternity leave.
Any discrimination claim would likely be supported by the fact that the question does not appear to serve any legitimate purpose as applicants would already be aware of these terms from the job advertisement. Therefore, they would have applied for the post on the basis that they were agreeable to such terms.
If an applicant’s response to this question indicates that they are within a protected class, refusing them employment could leave you open to a discrimination claim as it would be difficult to show that you have not relied on their response in making your decision.
Question 3:
Providing a response to this question may well indicate that the applicant is in a protected class, for example, a candidate who has cancer (which is expressly classed as a disability in the Equality Act) may need to stay in the vicinity of their hospital to obtain regular treatment.
Reliance on the response to this question would be discriminatory. But it would also be possible to defend a claim if it were possible to justify the requirement objectively, for example, if the position was for a long-haul flight attendant, by the very nature of the job, the employee would need to be away from home for long periods.
Therefore, asking this question and relying on the response when making a decision would be permitted.
If, in reality, the requirement to work away from home at short notice is very rare, this situation should be highlighted. Overstating the requirement could deter perfectly suitable candidates from applying, or being refused the job and subsequently claiming discrimination.
Question 4:
With regards to the fourth question, an employer is within their rights to request information from a prospective employee relating to ‘unspent’ convictions. They are also entitled to rely on this information when deciding whether to offer them employment. Indeed there are certain jobs where it would be against the law to employ certain ex-offenders, for example, teaching and social work.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
For various reasons, the questions that you propose are potentially quite problematic. The first point to note is that, with some notable exceptions, it is unlawful to ask questions about someone’s health prior to making a decision as to whether to offer them a job.
Although on the face of it, none of the first three questions explicitly ask about health, it could be argued that they are implicitly about health/fitness in a general sense (they may also be about other things, but it is the impression that they give that could be damaging). The words ‘are you able…’ is particularly open to that charge.
If you ask these questions together, the suggestion is that you are concerned about ‘ability’ in the health and fitness sense rather than mere availability. In reality, you should not ask anything, prior to offering someone a job, that might be taken as implying you have questions about their possible attendance. This is because attendance or the ability to attend work ‘regularly’ often relate to health concerns.
For example, a disabled employee may need time off for treatment and may be put off from applying for the job, or be denied the role for that reason, whereas they may be perfectly capable of doing it, possibly with some reasonable adjustment. The law tries to get employers to focus on each candidate’s ability to undertake the duties inherent in a given post rather than the wheres and whens of doing it, at least until an offer has been made.
The second point relates to the potential for sex discrimination or associative disability discrimination. Questions related to hours, being away and regular attendance have the potential to discriminate against women, who the law accepts are more likely than men to have the burden of child care responsibilities, and carers of disabled people (who may need time off for providing such care).
Spent convictions
It is not impossible for employers to deny such candidates a job, but to ask such questions on an application form and not shortlist them is to make oneself a hostage to fortune. It is simply better not to ask and to deal with the issue at a later date.
The third point relates solely to question four. Anyone can ask about convictions and take decisions about hiring and firing based upon them. But the Rehabilitation of Offenders Act 1974 indicates that convictions are spent after varying periods of time and the effect of rehabilitation is that the individual is to be treated as "for all purposes in law" as someone who has not committed an offence (section 4).
The Act expressly states that a spent conviction cannot act as proper grounds for dismissing someone or excluding them from a job. This general prohibition is subject to one set of Regulations, which enable certain organisations to ask about spent convictions and to take employment decisions based on that information.
A long list of professions and jobs are covered but are mainly found in the judiciary, social services and health, where dealing with patients is required in the normal course of the job.
This means that, while your question is fine, it may well assume that the individual knows whether the conviction is spent or not. So I would suggest including a note on the application form indicating that there is no requirement to tell you about spent convictions and, if the candidate is unsure, s/he would be advised to seek appropriate advice before submitting it.
Martin Brewer is a partner at Mills & Reeve LLP.
