Too many companies are failing to revise internal procedures in order to comply with new equality and anti-bribery legislation, leaving them open to potential prosecution, lawyers have warned.
According to a survey of more than 100 HR directors undertaken by law firm Pannone, just under two thirds of respondents still routinely use pre-employment health questionnaires as a matter of course and nearly half of employers insist that candidates fill in health questionnaires before making a formal job offer.
But under the new Equality Act, which is due to come into force in October, prospective employees will no longer be expected to declare medical issues unless they are specifically related to their job role.
Jim Lister, head of employment law at Pannone, said: “The penalties for employers include investigation by the Equality and Human Rights Commission and the reversal of the burden of proof, meaning that the employer will be assumed to have discriminated unless it can show there was another reason for non-selection.”
As a result, he urged HR departments to urgently review their use of medical questionnaires and, unless they were role-specific or otherwise exempt, to withdraw them before the Act came into force.
It was likely that questions relating to a candidate’s sickness record would also fall foul of the law, Lister warned. Organisations that learned of an individual’s health issues after making a job offer but failed to make reasonable adjustments or withdrew the offer would likewise be subject to litigation, he added.
A second survey undertaken by the law firm also found that, while just over two thirds of in-house lawyers were concerned by the growing trend towards criminalisation in business regulation, just over half of employers had still not reviewed their anti-bribery procedures.
This is despite the fact that the Bribery Act 2010 came into force on a rolling basis between June and October this year and significantly increases the exposure of individuals and companies to criminal liability. Executives found guilty of breaching the law will face unlimited fines and potentially lengthy terms of imprisonment.
Anthony Barnfather, head of regulatory law at Pannone, said: “Regulators are under unprecedented political pressure to make examples of individuals and organisations alleged to be involved in corruption. Authorities have a wide range of intrusive powers available to them to investigate and prosecute bribery and corruption.”
As a result, in this climate of tightening regulation and tough punitive sentences, employers should ensure that they had the proper procedures in place to avoid falling foul of the new laws, he added.