The Equality Act 2010, which came into force on 1 October 2010,  contains important new provisions aimed at reducing disability discrimination in recruitment. Section 60 of the Act prohibits a person, to whom an application for work is made, from asking about a candidate’s health before offering them work, other than in limited circumstances.  

It’s not just employers who could face action under the Act.  If an employment agency asks health questions on behalf of a client employer, it is likely to be considered to be acting as the employer’s ’agent’, meaning both it and the employer could be held liable. 

Employment businesses which supply agency workers to end users will also be covered in most cases; the Act will cover not just health questions asked before a candidate is taken onto an agency’s books, but also enquiries made before a specific assignment is offered. It does not limit liability for the employment agency or employment business that the employer has specifically requested health questions to be asked.

Although raising prohibited health questions does not give rise to a free-standing claim on the part of the prospective employee, remedy for breach is within the hands of the Equality and Human Rights Commission, which can use its existing powers to take enforcement action against the recruitment company under the Equality Act 2006, if it so chooses. However, recruitment companies who ask job candidates about their health are likely to find it harder to defend themselves against disability discrimination claims. If an individual is turned down for a job and claims this was discriminatory, then the burden will move to the recruitment company to prove that unlawful discrimination has not occurred.

The new rules will not apply to questions that are necessary for the purpose of:

-    establishing whether a candidate will be able to comply with a requirement to undergo an assessment for the job or establishing whether reasonable adjustments are needed in respect of any such assessment;

-    establishing whether a candidate will be able to carry out a function that is intrinsic to

the work concerned (subject to the duty to make reasonable adjustments);

-    monitoring diversity;

-    taking positive action;

-    where having a particular disability is an occupational requirement, establishing

whether a candidate has that disability.

The Act does not define the meaning of “asking questions about the health of [an] applicant”. Questions such as “How many days sickness absence have you taken in the last 12 months” are likely to constitute “questions about a person’s health” and could, if they affect the outcome of recruitment and are not asked in the context of any of the Act’s exceptions, prove unlawful. Enquiring about a disciplinary record which outlines a series of warnings for lateness, could similarly lead a prospective employer to stray in to health issues.

Recruitment companies should review their application forms and any selection criteria in light of the new legislation and make changes accordingly.

Simon Rice-Birchall, partner in the HR group at international law firm Eversheds