2.3 Inclusive Health Requirements
Asking applicants to demonstrate a good sickness record, may amount to indirect discrimination against disabled people in particular, unless these criteria can be objectively justified by the requirements of the actual job in question.
The inclusion of health requirements within the Job Design could amount to direct discrimination against disabled people, where such requirements lead to a blanket exclusion of people with particular impairments and do not allow individual circumstances to be considered.
Also be aware that, except in specified circumstances, it is unlawful to ask questions about health or disability before the offer of a job is made or a person is placed in a pool of people to be offered a job.
It is not possible for a job applicant to bring a claim against an employer just because they have been asked questions about health or disability which are not allowed by Section 60 of the Equality Act (2010). However, if an employer does ask questions that are not allowed and does not then offer the applicant a job, the employer could be liable for unlawful disability discrimination and, if so, will have to pay the financial damages.
Example 1: Good health/physically fit = direct discrimination because of disability, unless the requirements can be objectively justified.
Example 2: Height requirement = may indirectly discriminate as it would put at a disadvantaged women, some disabled people, and people from certain racial groups if it cannot be objectively justified for the job in question.
Instances where it is required to ask about Health:
Example: A construction related School/Unit is recruiting scaffolders. The School/Unit can ask about health or disability on the application form or at interview if the questions relate specifically to an applicant’s ability to climb ladders and scaffolding to a significant height.
The ability to climb ladders and scaffolding is a function that is intrinsic or fundamental to the job.
Pre-Employment Health Questions
Section 60 of the Equality Act (2010) makes it generally unlawful to ask questions about disability and health before a job offer is made. The purpose of Section 60 is to prevent disability or health information being used to sift out job applicants without first giving them the opportunity to show they have the skills to do the job.
Exceptional circumstances when health questions are permitted under Equality Act (2010) EHRC guidance (2014). Section 60 allows questions about health and disability to be asked before job applicants are offered the job only when the law says they are necessary and fall within these narrow exceptions:
- To find out if a job applicant can take part in any assessment to test their ability to do the job or to find out if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment. This information should be collected separately from other information given in the application for the job.
- To find out whether a job applicant will be able to carry out an intrinsic part of the job. If this part of a job can be changed or assigned to another person then this may count as a reasonable adjustment for a disabled job applicant.
- To find out whether a job applicant has a particular disability where having that disability is an occupational requirement of the job.
- To monitor the diversity of people applying for the job. This information should be collected separately from other information given in the application for the job.
- To take positive action in relation to disabled people – for example, to decide if job applicants qualify for measures the employer takes to improve disabled people's employment rates.
- Where another legal requirement means an employer has to ask health- or disability-related questions.