Pre-employment screening – what are the limits?

Recruiting the right member of staff takes considerable time and effort, and so understandably employers want to get it right. It used to be standard for an employer to require  a potential candidate to complete a medical questionnaire as part of the recruitment process, but since the introduction of the Equality Act in 2010 employers are effectively ‘banned’ from asking candidates questions about their health before offering employment.

That said, there are exceptions and there are some health questions which can be safely asked on an application form or prior to interview. For example, it is reasonable for an employer to ask a candidate if they have a disability which requires reasonable adjustments to be made to the recruitment process (not the role) and it is permissible to ask a pointed question if it directly relates to a fundamental requirement of the role, such as whether a candidate for a position as a scaffolder has the ability to climb scaffolding at height.

If a candidate volunteers information about their health in an interview, the interviewer should acknowledge the point made but refrain from asking further questions or entering into a detailed discussion. This should only take place once a job offer has been made.

This can often feel uncomfortable as the interviewer may wish to come across as interested and understanding by asking further questions,  but to do so may risk a later claim of discrimination if the candidate is unsuccessful and believes the information discussed negatively impacted their prospect of being offered the role. Interviewers need to bear in mind that anything said during an interview can be relied upon in an employment tribunal, and because of this, businesses need to train staff to know what questions can and cannot be asked.

Jenny Hawrot works in our employment law team, advising clients on the full range of employment-related matters including TUPE, defending tribunal proceedings, contractual matters and general employee relations and HR work. She has wide experience working for SMEs, owner-managed businesses and organisations employing in excess of 1,500 staff across the UK.