Are you still asking health related questions on job application forms? If you are, have you thought this through?
Is the reason you ask health related questions on job application forms because you want to judge if someone is going to be able to attend work regularly?
You’ve probably heard of the Disability Discrimination Act 1995 (DDA). However, have you heard of The Equality Act 2010 (EqA)? If you haven’t, you need to learn more about it and how it has superseded the DDA. The EqA lists a number of ‘protected characteristics’. One of the ‘protected characteristics’ in the legislation is disability. Disability is defined as a ‘physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities’.
You probably know that it’s is against the law to discriminate against someone who has a disability. You probably wouldn’t dream of directly discriminating against a candidate for a job with a disability.
If you are still asking health related questions on job application forms, you probably don’t realise that you may receive claims against you for discrimination. Asking health related questions on job application forms allows you to be challenged. It maybe claimed that you are screening out disabled job applicants before they have had the chance to have their knowledge, skills and experience assessed.
You are only permitted to ask health or disability related questions when:
- Establishing whether the job applicant can take part in an assessment to determine their suitability for the job.
- Determining whether any reasonable adjustments need to be made. This can enable a disabled person to participate in an assessment during the recruitment process.
- Finding out whether a job applicant would be able to undertake a function that is intrinsic to the job.
- Monitoring diversity among applicants.
- Supporting ‘positive action’ in employment for disabled people.
- There is an occupational requirement for the person to be disabled.
So, it’s OK to ask an applicant for a job as Care Assistant in a residential care home questions about their ability to carry out the job. Especially where there is an element of the job that involves lifting and physically supporting residents.
It may not be OK to ask an applicant for a job as a Care Assistant whether they have
- speech, hearing or visual difficulties
- varicose veins
- depression or other mental health conditions
We’ve come across individuals who seem to make it their business to make claims against employers for discrimination in the recruitment stage.
It seems that they particularly target organisations which have application forms available on their website, which they may download and then, at their leisure, complete the form. They will usually show they have a number of relevant qualifications (whether they hold them in reality is often a matter of doubt) but they will answer the health related questions on job application forms to show that they have a condition that is likely to be a disability.
When they don’t get an interview, despite their excellent qualifications, they lodge a claim for disability discrimination. You are suddenly tied up in defending yourself because the burden of proof is now yours to show that you’ve not discriminated. That’s a bit difficult when you have an application form on your website which is clearly asking questions that guidance from the Government Equalities Office suggests that “The general position is that it is unlawful for an employer to ask any job applicant about their health or disability unless and until the applicant has been offered a job.”
What should you do if you ask health related questions on job application forms?
- Take the form off your website
- Re-draft the form to take out all health-related questions that are not directly related to the permitted areas listed above
- Whilst you’re at it, think about taking out any questions asking
- for dates of birth (potential age discrimination)
- for marital status (potential discrimination on the grounds of sexual orientation)
- about religion/belief (potentially discriminatory)
- about race (potentially discriminatory)
- Ask questions which relate to assessing a candidate’s suitability to perform the tasks involved in the job that you are seeking to fill.
The point where you can legitimately start to ask more searching questions about their health and disability is when you have offered the job. However, you still need to be objective in the questions that you ask.
Metis HR is a professional HR Consultancy based in the North West of England supporting clients across the country. We specialise in providing outsourced HR services to small and medium sized businesses. Call us now on 01706 565 332 to discuss how we may help you.