Weightmans’ Stuart Jones on why pre-job offer health tests will stop

THE much-heralded Equality Act comes into force in a matter of months and whilst most employers have been aware of its implications for a while now, some aspects of the Act look set to take them by surprise.

One such part is Section 60, which protects disabled job applicants by prohibiting the use of pre-employment health questionnaires before a job offer is made.

Employers can no longer adopt a “one size fits all” approach in sending out questionnaires on general health and medication issues with application forms. Nor will they be able to require the applicant to undergo a medical assessment before the job offer.

Employers can only ask health-related questions for certain reasons, such as establishing whether any reasonable adjustments need to be made for applicants during the selection process or to monitor diversity.

Businesses that don’t comply could face discrimination claims if an applicant feels they have been asked prohibited questions in the application process or if they just are not selected for the job.

The applicant will use the pre employment health questionnaires as evidence of discrimination, and it will fall to the employer to prove that discrimination did not take place.

The current guidance is unclear on what specific health questions are permitted, but the act will result in litigation which should provide greater clarity.