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Ban On Pre-Employment Health Questionnaires


Medical Health Questionnaires Jacqui Mann

Ban On Pre-Employment Health Questionnaires


The ban on Pre-Employment Health Questionnaires came into effect in October 2010 with the introduction of the Equality Act. This makes it illegal to ask a candidate to complete a health questionnaire before an offer of employment has been made.

I understand the reasons behind the ban. It is to ensure that everyone is properly considered to see if they can carry out the role, and not ruled out because of issues arising from their health. However I believe that this has serious consequences for some sectors.

The pre-employment ban also prevents you from asking the candidate questions to establish how many days of sickness absence they have accrued during previous employment prior to them being made a job offer. It also prevents you from asking these questions in a reference if an employment offer has not been made.

You may only ask about disability or health, before the offer of a job is made, where the question relates to a person’s ability to carry out a function that is intrinsic to that job. Where a disability or health-related question would determine whether a person can carry out this function with reasonable adjustments in place, then such a question is allowed. Download 41 Things Every Employer Needs To Know About Staff.

I recommend that you review your job descriptions to ensure that the “intrinsic functions” are specifically identified and where possible separated from other less important duties. You can then ask the candidates the following question.

‘Do you have any health condition which is likely to affect your ability to undertake the intrinsic functions of the job contained in the job description?’

The guidance from Equality & Human Rights Commission states that ‘intrinsic’ equates to ‘absolutely fundamental’.

You can ask people to complete a health questionnaire after you have made a job offer. If you then discover they have a health issue you would need to consider what reasonable adjustments you could make or present a justifiable business case as to why you could no longer employ the individual. This would involve asking for medical consent from the employee to contact their GP, and arranging a visit to an Occupational Health Advisor to give a professional opinion on whether the employee is fit for the role.   This of course can take a long time and is costly to the business owner. Unfortunately as the law stands if you don’t follow this procedure you could find yourself facing a claim of direct discrimination because of disability.

We don’t currently have information on what a court will class as intrinsic to the role. This will not be known until the first case goes to court and we see how the tribunals view the situation. Don’t forget to get your download here.


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