Employment law: in sickness or in health

IT MAY be tempting for some employers who are looking to hire new staff to try to identify the candidates who seem the most physically and mentally fit – and who will therefore be least likely to go "on the sick".

But while some questioning by prospective employers along these lines may have been tolerated in the past, new legislation introduced on October 1, 2010 has changed employment practices. Employers are now banned from asking questions about candidates’ sickness records and existing health conditions, before they have decided to offer them a job.

This provision of the new Equality Act 2010 is one of the most significant developments in employment law this autumn and is intended to protect disabled candidates from having their applications binned before they have even had a chance to demonstrate their suitability for the job on offer. There is research evidence to suggest that this has been a fairly widespread practice in the past – to the extent that the Chartered Institute of Personnel and Development (CIPD) and many other organisations supported this change to the law, as now enshrined in the new Act.

We are aware of a number of Law at Work clients who have had bad experiences with high levels of staff sickness absence in the past and who have introduced sifting mechanisms to gather information from job applicants about their past job history. They have done this simply in order to avoid wasting time and effort - having followed a long recruitment process only to find that the successful candidate goes off sick shortly after starting the job and quickly becomes a problem attender.

Some employers ask a question on their application form about the level of sickness absence the candidate has had in the last year. Others ask applicants to complete a checklist confirming particular medical conditions that they have had or still have. Many ask candidates questions at interview about their medical history. But these practices will now have to stop or employers will risk being challenged in an employment tribunal for disability discrimination.

Of course, candidates can lie about their medical history and the only vaguely reliable way to ascertain the true position is to ask their former employer, in a reference, for information about their former (or present) employee.

As practice managers will know, references are not the most reliable source of information – but they are often the only way of checking the candidate’s statements on the subject.

Under the Act, the recruiting organisation can still ask the successful candidate about their medical history, but only at the point that a conditional offer of employment is made. This is to avoid any suggestion that disabled applicants have been disadvantaged up to that point in the process.

There are, however, exceptions in the Act which permit employers to ask questions about disabilities or medical conditions at an earlier stage in certain circumstances. These are:

• To establish whether adjustments need to be made for interview and selection
• For the purpose of equality and diversity monitoring
• If there is an ‘intrinsic’ feature of the job which requires a check about whether the candidate has a particular condition – for example, for safety or insurance reasons
• Where a job interview guarantee scheme, or similar positive action, is in place for disabled candidates
• Where having a disability is an occupational requirement of the job.

If you have an application form with medical questions or a checklist or follow the practice of asking interview questions about health matters, you need to get advice about how, or indeed whether, these should now be used.

There is more information about the Equality Act on the Government Equalities Office website

Ian Watson, Law At Work

Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information and contact details please visit http://www.lawatwork.co.uk/