Ensuring your recruits are fit for the job
27 August 2015
Are candidates legally required to disclose sensitive information, such as health issues, to recruiters?
Thu, 27 Aug 2015
The tragic story of a Glasgow bin lorry driver involved in a crash that killed six people last year is back in the press as a Fatal Accident Inquiry heard that the driver had a history of dizziness and blackouts.
Harry Clarke’s employer, Glasgow City Council, has since said that he would not have been given the job had it known about his medical history. It begs the question as to what can be done in the recruitment process to unearth relevant problems, and indeed what employers can do during employment to assess someone’s ability to perform their role.
APPLICANTS: What do they have to tell employers?
Unfortunately for recruiters, employers cannot compel candidates to provide information but they can make offers of employment conditional on certain checks or information being provided. The potential employer must be able to justify any check with regards to the requirements of the role in question.
FORMER EMPLOYERS: What information can or should they provide?
Former or existing employers are not likely to be under a specific obligation to provide references, unless there is a contractual commitment to do so. Where references are given they should be truthful not misleading and accurate so far as the former employer’s duties to the employee are concerned. At the same time they should not misrepresent the position to the putative employer. Medical information or other sensitive personal data should not be handed over by the former employer to the new employer without the candidate’s explicit consent. At best a former employer might comment in a more general way or say nothing at all about attendance levels that would raise questions in the reader’s mind.
POTENTIAL EMPLOYERS: What information can they access?
When recruiting new members of staff, employers are allowed to request such medical reports, questionnaires, background checks, qualifications and references as are necessary for the job in question, so long as they are justified by the requirements of the role in question.
Under the Equality Act 2010, potential employers should not generally ask applicants about their health before offering them work. In the case of someone to be employed as a driver, asking health questions up front would be permissible because medical information is necessary to assess whether someone is able to carry out a function intrinsic to the job. For any kind of job, it is still permissible to offer employment subject to satisfactory health checks. That does not mean that offers can be withdrawn following receipt of information about a candidate’s health which an employer does not like; the information disclosed must impact on the ability of the candidate to perform the role, and the possibility of making reasonable adjustments to the role should be considered to avoid falling foul of disability discrimination legislation.
Where medical reports are sought, specific information needs to be given to the candidate: the employer should notify them that they intend to apply for a medical report, and the candidate will have to give their express written consent, which should be sent to the medical practitioner with the report request.
Employers should be aware that medical information is sensitive personal data, and so data protection issues will arise in the processing of candidates’ and employees’ health details.
Medical questionnaires are only as reliable as the candidate; information could be withheld.
EMPLOYEES & CURRENT EMPLOYERS
It’s all very well to do a thorough check on someone joining your organisation, but for many roles, it will be equally important to ensure that information remains up to date. In some industries health and safety requirements may be such that various health and fitness tests are required periodically, as well as other forms of testing such as alcohol and drugs testing which are justified by health and safety requirements.
Whatever the sector, it is recommended that employers check that the use and application of such tests or check-ups are justified and proportionate to the requirements of the job. For transport workers such as the bin lorry driver, this could perhaps have taken the form of an annual doctor’s check-up including a sight test, or a requirement to re-sit driving tests every few years.
In addition a provision in the employment contract could require the employee to inform the employer if certain relevant health concerns appear. An employee’s breach of provisions like this could, for example, entitle the employer to discipline the employee or treat to it as a breach of contract.
CONCLUSION
While this area is not straightforward, employers are able to ask for medical reports and ongoing information where they are satisfied that it is justified for the role in question.
POWER POINTS
1.Consider the nature of the job and the potential harm it could cause to others.
2.Weigh up the impact of asking for the information against the benefit of the reduced risk to ascertain whether it is justified.
3.Ask whether there is any information that could help you reduce those risks.
Check your data protection responsibilities in relation to any personal data obtained.
Is there any other, less intrusive way of reducing that risk?
ELLEN TEMPERTON
FROM SEPTEMBER 2015'S RECRUITER MAGAZINE
Are candidates legally required to disclose sensitive information, such as health issues, to recruiters?The tragic story of a Glasgow bin lorry driver involved in a crash that killed six people last year is back in the press as a Fatal Accident Inquiry heard that the driver had a history of dizziness and blackouts.
Harry Clarke’s employer, Glasgow City Council, has since said that he would not have been given the job had it known about his medical history. It begs the question as to what can be done in the recruitment process to unearth relevant problems, and indeed what employers can do during employment to assess someone’s ability to perform their role.
APPLICANTS: What do they have to tell employers?
Unfortunately for recruiters, employers cannot compel candidates to provide information but they can make offers of employment conditional on certain checks or information being provided. The potential employer must be able to justify any check with regards to the requirements of the role in question.
FORMER EMPLOYERS: What information can or should they provide?
Former or existing employers are not likely to be under a specific obligation to provide references, unless there is a contractual commitment to do so. Where references are given they should be truthful not misleading and accurate so far as the former employer’s duties to the employee are concerned. At the same time they should not misrepresent the position to the putative employer. Medical information or other sensitive personal data should not be handed over by the former employer to the new employer without the candidate’s explicit consent. At best a former employer might comment in a more general way or say nothing at all about attendance levels that would raise questions in the reader’s mind.
POTENTIAL EMPLOYERS: What information can they access?
When recruiting new members of staff, employers are allowed to request such medical reports, questionnaires, background checks, qualifications and references as are necessary for the job in question, so long as they are justified by the requirements of the role in question.
Under the Equality Act 2010, potential employers should not generally ask applicants about their health before offering them work. In the case of someone to be employed as a driver, asking health questions up front would be permissible because medical information is necessary to assess whether someone is able to carry out a function intrinsic to the job. For any kind of job, it is still permissible to offer employment subject to satisfactory health checks. That does not mean that offers can be withdrawn following receipt of information about a candidate’s health which an employer does not like; the information disclosed must impact on the ability of the candidate to perform the role, and the possibility of making reasonable adjustments to the role should be considered to avoid falling foul of disability discrimination legislation.
Where medical reports are sought, specific information needs to be given to the candidate: the employer should notify them that they intend to apply for a medical report, and the candidate will have to give their express written consent, which should be sent to the medical practitioner with the report request.
Employers should be aware that medical information is sensitive personal data, and so data protection issues will arise in the processing of candidates’ and employees’ health details.
Medical questionnaires are only as reliable as the candidate; information could be withheld.
EMPLOYEES & CURRENT EMPLOYERS
It’s all very well to do a thorough check on someone joining your organisation, but for many roles, it will be equally important to ensure that information remains up to date. In some industries health and safety requirements may be such that various health and fitness tests are required periodically, as well as other forms of testing such as alcohol and drugs testing which are justified by health and safety requirements.
Whatever the sector, it is recommended that employers check that the use and application of such tests or check-ups are justified and proportionate to the requirements of the job. For transport workers such as the bin lorry driver, this could perhaps have taken the form of an annual doctor’s check-up including a sight test, or a requirement to re-sit driving tests every few years.
In addition a provision in the employment contract could require the employee to inform the employer if certain relevant health concerns appear. An employee’s breach of provisions like this could, for example, entitle the employer to discipline the employee or treat to it as a breach of contract.
CONCLUSION
While this area is not straightforward, employers are able to ask for medical reports and ongoing information where they are satisfied that it is justified for the role in question.
POWER POINTS
1.Consider the nature of the job and the potential harm it could cause to others.
2.Weigh up the impact of asking for the information against the benefit of the reduced risk to ascertain whether it is justified.
3.Ask whether there is any information that could help you reduce those risks.
Check your data protection responsibilities in relation to any personal data obtained.
Is there any other, less intrusive way of reducing that risk?
ELLEN TEMPERTON
