Can managers ask job applicants about their health/disabilities to determine if an individual could carry out the job with reasonable adaptions? The Equality Act 2010 aims to prevent situations in which job applicants are ruled out purely on a cursory view that they may or may not have health issues. However, some managers have gone to the other extreme and said that such questions are not allowed until an individual is offered a job.
Questions about health and disability may be asked in certain circumstances before an offer is made.
Examples of those are:
i) To establish whether a job applicant would be able to undertake a function that is intrinsic to the job, with reasonable adjustments in place as required;
ii) To identify if a job applicant would be able to participate in an assessment to test his or her suitability for the work;
iii) To see if reasonable adjustments will be required to enable a disabled person to take part in the recruitment process;
iv) To support positive action in employment for disabled people;
v) To enable a manager to identify suitable candidates for a job where there is an occupational requirement for the person to be disabled;
vi) To monitor diversity in applications for jobs.
The first point will be key to many selection decisions. This allows questions to be asked of applicant to identify a health or disability factor that would make it impracticable for the person to perform the job effectively. However such questions may only be put if you have first considered whether it would be reasonably practicable to make adjustments to the work or environment so that more common health or disability issues are overcome or minimised. For example, if a vital requirement was effective colour recognition and there was no reasonable adjustment that could minimise the disability, then such a question could be asked. Remember, the Act is trying to eradicate the practice of setting aside applications because of the slightest mention of a potential health/disability issue.
Managers will need to consider the essential requirements of a job to identify any health conditions or disabilities that likely to make it impracticable for a person to perform the job to an acceptable standard. If reasonable adjustments can be made to compensate for the condition or disability, then questions about health will not be permitted prior to an offer of employment. For example, lifting is a requirement of many jobs so an employer would be expected to see if those requirements can be overcome by say the use of lifting equipment, re-organisation of the work process etc. If that is practicable, then questions prior to employment should not be put.
Ultimately, the onus will be on the employer to justify that discrimination has not occurred in the recruitment process.
In summary, question on health and disabilities can be put to a job applicant when a conditional or unconditional offer of a job is made. Before that stage questions may only be put if one of the exemptions in i) to vi) above applies and if you have taken account of whether reasonable adjustments would make it unnecessary to ask such questions.
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