When is a question not a question?

In 2010 the Equality Act brought in the concept of pre-employment questionnaires and established the rule that it is generally unlawful to ask job applicants for information about their health prior to offering a job. Straight forward? Of course not!

Although most employers understand that they cannot ask employees to provide extensive details on their health pre-employment, it is fairly apparent that questions relating to health are still cropping up in interview processes in less formal ways.

Pop quiz: which of these questions are acceptable in an interview:
“some people find this job stressful – do you have any problems coping with stress?”
• “the job involves a lot of heavy lifting, is there anything which would prevent you doing this?”
• “is there anything which would stop you climbing ladders in this role?”
None of them? All of them?

It is clear that these statements are potentially questions which may elicit information regarding health, even though they do not explicitly ask about health or disability. So, on the face of it, by asking the questions, and obtaining answers about health issues, the employer is running the risk of falling foul of the Equality Act. These risks are particularly enhanced if the employee does not get the job based on their responses to the questions.

In practice, however, these kind of questions will often be considered to be essential to avoid difficulties in the later employment relationship (if the employee basically cannot do the job). The good news then is that, in some cases, they will be lawful.

One of the tests as to whether you can ask questions of this nature focuses on the job itself. If the employer can show that a question is necessary to establish whether the applicant will be able to carry out an intrinsic function of the role, the question will be permitted. In other words, do you need to ask the question because an inability to carry out certain activities means a certain function of the role cannot be performed? The Equality and Human Rights Commission Pre-Employment Health Questions Guidance gives the example that it could be lawful for a construction company to ask applicants for a scaffolding job whether they have a disability or health condition that would affect their ability to climb ladders.

A get out of jail free card then? Not exactly.

The most important thing is to ensure that the question relates to a function that is intrinsic to the work involved. What’s more, it must remain intrinsic after any reasonable adjustments have been made. So the construction company would probably be safe, as a scaffolder who could not climb ladders or cope with heights could not easily be a scaffolder. But what if the job involved partly working on the ground and partly climbing ladders? Could somebody with a severe back problem preventing them from climbing ladders still do the ground work, and could the rotas be changed so that they did not ever need to climb ladders? If so, the employer may struggle to show that climbing ladders was intrinsic to the job?

So how do you determine whether something is intrinsic to the role? This would normally involve a process of risk assessment and documenting any consideration of other options, along with any reasonable adjustments. It can often be sensible to involve Occupational Health in looking at the requirements of a job and what the duties involve.

However, remember, the EHRC does say that it will be very rare that it is appropriate to ask questions regarding health in any circumstances. So, unless it is essential, you will probably want to steer clear.

But if you decide not to steer clear, but cannot pass the intrinsic test, what happens if you unlawfully ask a prohibited health question? Put simply, a claim cannot be brought purely because you have asked the question so it is not necessarily a disaster. However, if you ask the question and a disabled applicant does not get the job, the risk of a discrimination claim being brought, and the risk of that claim being successful, is greatly increased.

Where a prohibited question has been asked, the burden of proof in the future disability discrimination claim will automatically lie with the employer. This means that it will be for the employer to show that the reason for rejecting the applicant was un-related to the health issues revealed. In many cases this may prove difficult so, if you have asked the question, and you want to reject an applicant who has revealed a health condition, it will be important to ensure that there are clear grounds for the rejection which are unconnected to their health, such as qualifications or experience.

In addition, the EHRC has enforcement powers, including investigation, issuing notices and action plans and even intervening in legal disputes.

None of the above is appealing and will probably convince most employers to avoid health questions like the plague. Perhaps the easier thing to do would be to comply with EHRC guidance and rephrase our earlier questions so that they ask about the candidate’s ability, rather than any obstacles to the work:
“can you provide an example of when you worked to a tight deadline under pressure and how you dealt with it?”
• “please provide examples of similar work you have done in the past where you have had to do heavy lifting”
• “do you have experience of climbing scaffolding?”
Hopefully, in this way, you can still identify the best candidate, and stay out of the tribunal!

Please get in touch if you would like to discuss any issues.