The use and purpose of employment health screening questionnaires/declarations changed dramatically after the Equality Act 2010.
Prior to the introduction of the Act, employers were able to ask health related questions before they offered a candidate a job and effectively use this information as part of the selection process.
However, under the Equality Act, it is now unlawful for employers to ask about a candidate’s health until after a job offer has been made to them.
The reasoning behind the change is to ensure that individuals with potential disability issues are not discriminated against at the point of interview and to ensure that adjustments to the job are made if needed.
Therefore, pre-employment health screening declaration forms should no longer be used. Instead, this information can be gathered once the position has been offered.
However, the Equality Act does allow for employers to ask health-related questions before offering the position for certain specified purposes. Employers may ask questions about health prior to an offer of employment only if they are necessary to establish whether or not the applicant would be able to perform key functions and duties of the job. Employers can ask health-related questions prior to offer to:
- help decide if reasonable adjustments are needed in the selection process (not the job)
- determine if an applicant can carry out a function that is essential to the job such as heavy lifting, or
- assist in diversity monitoring purposes
Once a job offer has been made the health information helps to determine if any adjustments need to be made for the new starter and helps to determine an individual’s fitness for their offered job role. If any issues are highlighted by a new starter then a discussion with the employee should take place to identify if any appropriate reasonable adjustments, any equipment which may support the individual to perform their role, any safety measures, additional help or support are necessary for the employee to perform the job. It may be that no adjustments to the role, equipment or environment are needed, nevertheless there will be a record that a discussion has taken place.
If an employer were faced with the issue that unfortunately after reviewing a completed health declaration an individual would be unable to perform a function that was intrinsic to the job and no adjustments could be made to accommodate this, then potentially the offer could be withdrawn. An intrinsic function of a job is a task which, if it could not be performed, would mean that the job could not be carried out. For example, an intrinsic element of the job as a residential carer is the ability to be able to help lift and physically support residents. That said, it would be risky to withdraw an offer to a disabled person unless it is beyond doubt that the health issues revealed meant that the role was impossible for them to do even after any reasonable adjustments were made.
The health declaration is also a useful document in cases where an employee fails to declare any underlying health issues that then become a problem or result in an accident that they were fully aware of at the time of recruitment and completing the form.
A properly administered health questionnaire is a valuable document but it is important to be aware of when and how these and the information obtained is used in order to avoid any pitfalls and potential discrimination claims.