The changes in the law concerning pre-employment healthcare questions have proved some of the most divisive out of all of the Equality Act adjustments.
The moves outlaw medical examinations and healthcare questions prior to employment, and the changes are also designed to strengthen protection of disabled workers and applicants.
The new provision prohibits employers asking job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is essential to the work concerned, such as heavy lifting).
Employers will still be entitled to screen applicants about health after making a job offer (or after including the applicant in a pool of short-listed applicants). Some employers may need to amend documentation or procedures in their recruitment process in order to comply with the new requirements, and it’s recommended you check your policies to ensure you are in line.
Fergal Dowling, Partner in the Employment team at National law firm Irwin Mitchell offered advice, saying: “If a job applicant has a disability the employer has a legal duty to consider making "reasonable adjustments" to accommodate the candidate. This could mean altering the recruitment process and even the job itself to ensure that the disabled applicant can compete on a level playing field with non-disabled applicants.”
Steve Williams, Acas’ Head of Equality said: “One of the issues we have had enquiries about relates to the outlawing of health related questionnaires in job application packs. This will mean a change for many workplaces and how they recruit. It will affect the interview and selection process so employers need to understand the changes and review their policies if needed.”
The new podcast explores the changes around pre-health questionnaires and is available to listen to at www.acas.org.uk/equalityact.
The enforcements were welcomed by Deborah Jack, who is Chief Executive of the National AIDS Trust (NAT). She believes it will improve the lives of people living with HIV positive status, saying: “This change will remove important barriers to people living with HIV entering the workplace, such as feeling disclosing their status may make them vulnerable to discrimination from a potential employer or concern their HIV status will not be kept confidential.”
The body has provided a guide, HIV and Recruitment to help employers become better informed on this, which will be available here from Monday.
Another group welcoming the legislation was Macmillan Cancer Support. The organisation claims that currently many employees with cancer do not know what their rights are and so may not request the help to which they are entitled – less than 40 per cent of people with cancer know that it is covered by the DDAii (which is now superseded by the Equality Act).
Ciarán Devane, Chief Executive of Macmillan Cancer Support, said: “Businesses would reap big rewards if people with cancer were offered effective back-to-work support. Helping people with cancer to stay in work doesn’t have to be difficult. We urge employers to fulfil their obligations to employees with cancer by enshrining high quality information and support in organisational policy and making sure it is championed by HR departments and senior managers.”
However not everyone has been so welcoming of the new rules. Tony Urwin, Director in the Healthcare Division of Medicals Direct Group, claimed that a major change in workplace culture will be needed if applicants with a range of disabilities are to be given a fair deal in employment.
He believes the changes will not deal with the real issue of workplace stigma attached to some disabilities, saying that in reality this provision will make very little difference. His experience indicates job applicants have often tended to conceal health issues, and many will continue to do so. He maintains that it is better for issues to be disclosed and dealt with professionally rather than concealed.
“What we need now is for employers to fully recognise the value of attracting, supporting and retaining staff with disabilities. Employers must create an environment and culture where all employees will feel accepted and valued,” he added.
Others believed it will make little difference to the day to day working of the organisation. Lisa Mayhew, partner in law firm Jones Day said: “In reality, these changes may have limited impact, given that most employers do not make enquiries about health and disability until after a job offer has been made.”
Paul Killen, employment law partner at Osborne Clarke, agreed, saying: "It’s true that the Equality Act ‘outlaws’ pre-employment health questions but the consequences of asking an unlawful question are not as severe as some commentators are saying. Employers will not face claims from employees simply for asking a question.
"An individual can only claim if they have suffered due to being asked a question about their health – for example if they did not get the job. A good employer that has thorough and proper recruitment processes should be able to defeat such a claim if it can show that, despite the unlawful question, the applicant would not have been selected anyway on the basis of their qualifications and experience.
"If an employer only asks legally permitted questions they may still find themselves in a similar position, as a discrimination claim could still be brought by an employee who alleges that they have been discriminated against on the basis of their answer.
"Good employment practices are vital in avoiding discrimination on any front, including sex, race or disability. The new law on pre-employment health questions should help weed out those employers prejudiced towards disability and health issues by making them think twice about what they are asking and why. But for most employers it should be business as usual."