The Equality Act Pre-employment Considerations

Published: January 8 2013

When can you ask about health or disability prior to employment?

There are certain times before you employ a new member of staff that you may need to ask candidates about their health and disability in relation to the Equality Act. The reasons you may need to ask this information include:

• To achieve greater diversity in the workforce. Asking disabled people to identify themselves so that they can benefit from the interview process.
• If a disability is an occupational requirement for the job. Personal experience of a disability may be important to the job role in order to assist others with the same disability.
• To take positive action in relation to disabled people.
• To monitor the diversity of those applying (This information should be kept separately from other information given in the application for the role).
• To find out if a job applicant can take part in an assessment to test their ability to do the job or to find out if reasonable adjustments are needed. (This information should be kept separately from other information given in the application for the role)
• Where a legal requirement means an employer has to ask a health or disability-related questions.

The Do’s and Don’ts

Do:

• Review recruitment policies, practices and procedures to analyse and ensure compliance with the Equality Act 2010
• Remove general questions to job applicants and third parties that relate to health and disability (e.g. questions concerning sickness absence) in recruitment materials
• Train managers and other staff involved in the recruitment process to ensure that they understand the practical responsibilities
• Structure any recruitment exercise, so far as possible, to focus objectively on relevant and necessary skills, knowledge, abilities and experience, avoiding reference to health and disability questions
• Questions can be asked in relation to an intrinsic function of the job – i.e. is a scaffolder able to climb ladders, but be cautious and ask the question without referring to health or disability
• Think about how to phrase questions to avoid referring to mental pressure i.e. can you give examples of how you have handled a difficult situation or worked to a tight deadline.
• Clearly explain why information about disability is being sought for monitoring purposes, spelling out what this information will and will not be used for.
• Where possible, separate disability monitoring data from other information provided by job applicants and take necessary steps to ensure that this information is not used by those making recruitment decisions
• Ask questions about reasonable adjustments relating to the recruitment process at the appropriate stage, for example, in the job advert in relation to adjustments to completion of forms or CVs; or after shortlisting candidates in relation to adjustments to tests, interviews or assessments.
• Clearly explain when exceptions to the legislation as being used and why you believe it is necessary to ask disability or health-related questions.
• Only refer candidates to occupational health after a job offer has been made
• Make a job offer subject to satisfactory health check; either devise your own or consider using a health screening organisation if you do not have an occupational health adviser. If you devise your own form, do not ask questions you cannot assess without medical advice.
• Have an exploratory conversation with the applicant about absence levels which are higher than your organisation’s trigger for monitoring absence management and make a file note of the conversation.
• For a prospective employee who declares a disability, they will know best what reasonable adjustments they need, so this should be discussed with them.

Don’t:

• If seeking references in advance of an offer being made, do not ask for information about sickness absence
• Don’t forget that one of the hardest things for a disabled person is to get in front of an interview panel and that many disabilities are not visible.

Don’t reject making reasonable adjustments for a new or promoted employee purely on the grounds of cost as there are funds available to help employers with the cost of reasonable adjustments for a new employee. Job Centre disability employment advisers can be a good source of information initially, as can charities supporting specific conditions, such as the British Dyslexia Association, RNIB and RNID.

Advice on recruitment and the Equality Act

Kent HR consultants are available to advise business on all aspects of recruitment and ensuring compliance with the Equality Act.  For more information please complete the enquiry form below or contact us to discuss your requirements.