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Equality Act 2010: Be Careful Which Questions You Ask to Job Applicants
Most of the provisions of the much discussed Equality Act 2010 will come into force in October this year. This includes Section 60, which prohibits the asking of questions about a job applicant’s health.
“The most relevant parts of Section 60 state that an employee cannot ask a job applicant any questions about their health before offering them a job. However, an employer can ask questions about a candidate’s health if they are asked for the purposes of establishing whether the employer is required to make a reasonable adjustment to the interview or selection process.
Employers can also ask health questions if they wish to establish whether the candidate is able to carry out a function that is essential to the work involved.
How would these exceptions work in practice?
For example: If a company’s head office is on the second floor of a listed building in which there is no lift, and interviews are normally conducted in the head office, it would be permissible to ask job candidates whether there is any health reason why they could not attend an interview on the second floor on the basis that, if there is a health reason why a candidate could not climb the stairs, the location of the interview should be changed to a more acceptable location for that candidate. This would be a reasonable adjustment.
Another example would be if a company requires a delivery driver. An intrinsic part of the job is lifting heavy loads on a regular basis, so it would be reasonable to ask candidates whether there is any health reason that would prevent or inhibit their ability to carry out this important part of the job. Such a question can be asked before a job offer is made!
If an employer breaches section 60, a job-seeker cannot make a claim to an Employment Tribunal but can complain to the Equality and Human Rights Commission.
Once a person has been offered a job, whether this is an unconditional or conditional job offer, the employer is permitted to ask appropriate health related questions.
Our view is that smart employers should be able to work out the intrinsic parts of jobs that may be impacted by health issues and ask questions that are relevant to these job requirements. Obvious examples apart from lifting are in relation to a desk job, is there any reason why you cannot sit at a desk for more than an hour at a time? For drivers, are you able to drive the sort of distances/time that the job involves?
For more information visit employment solicitor http://www.trethowans.com/
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Trethowans is a leading regional legal practice in the South of England. With offices in Salisbury and Southampton it provides a complete range of services for commercial and individual clients throughout the UK. In addition to the Managing Partner, the Firm has over 65 fee earners and 24 partners who are supported by a strong team of support staff.