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summer 2011 |
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The Equality
Act 2010 – unhealthy questions
Last issue we
reported on the implementation of the
Equality Act 2010. One key change is the
dissolution of the ability to ask
jobseekers health-related questions
prior to an offer of employment. So what
does this mean in practice?
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Since the Equality Act 2010 came into
force on 1st October 2010, a recruiter
may not use pre-employment
questionnaires or ask that a candidate
attend a medical assessment before a job
offer is made. This includes questions
about any disability a candidate may
have, as well as sickness absence
history. Should they do so, and use any
of the results as a basis upon which to
reject a candidate, they will find
themselves in breach of s.60 of the Act.
They will be susceptible to a claim by
the candidate and/or action by the
Equality and Human Rights Commission
(EHRC) who has the authority to impose a
fine of up to £5,000.
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Before the new laws it could be
difficult for jobseekers to prove any
case of discrimination – were they
rejected for a role upon the basis of
the results of a pre-employment medical
questionnaire, how could they prove this
was the reason? The new laws make this
more transparent and, in the case of any
complaint of discrimination, the onus
now lies with the employer to prove they
haven’t contravened the law. |
Since the Equality Act 2010 came into
force on 1st October 2010, a recruiter
may not use pre-employment
questionnaires or ask that a candidate
attend a medical assessment before a job
offer is made. |
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exceptions to the rule
There are, however, a few exceptions in
which employers may ask questions,
including:
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In order to
monitor diversity
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To ascertain
that an applicant has a certain
disability that is a prerequisite for
the role
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To establish
they can undertake a specific task that
is essential to the role
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To take positive
measures to assist those with a
disability
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To evaluate the
need for them to adapt the selection
process
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If an employer’s
reasons for asking health-related questions
prior to an offer of a job being made fall into
one of the above categories, then they are
permitted to pose them, but they should make
certain this is the case. If in doubt, consult
the
ACAS guide which lists examples of
situations where the above is applicable. There
may well be some firms attempting to get away
with asking such questions under the guise of
monitoring diversity, but they should be careful
that this really is the case. If it is deemed
that they are not truly being asked solely for
this purpose, they may run the risk of being in
breach of the Act.
Better to be safe
than sorry
It is certainly true
that employers and recruiters need to be extra
careful these days, considering the measures the
EHRC can take, and it is worth taking some time
to review all recruitment processes and any
forms. Any questions on pre-employment
documentation should be removed. It is important
also to note that any discussion of a potential
employee’s health, say in an interview
situation, is not permitted, even if it is
raised by the candidate.
If you are in
need of any further clarification on the new
laws, consult the ACAS guide in the first
instance which provides a comprehensive overview
for employers and recruiters. Generally, a good
rule of thumb would be that if in doubt, leave
it out!
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