Recruitment

Another significant section of the Equality Act which is important for employers to comply with is that pertaining to recruitment.

Section 60 of the Act gives specific legislation with regards to applications for work in the context of recruitment. It states:

1)    A person (A) to whom an application for work is made must not ask about the health of the applicant (B) –

a)    Before offering work to B, or

b)    Where A is not in a position to offer work to B, before including B in a pool of applicant from whom A intends (when in a position to do so) to select a person to whom to offer work.

Subsection (3) reinforces the notion that prior knowledge of a disability which then potentially has a detriment on the success of an applicant would be a contravention of the Act. Subsections (6a-e) highlight that it would not be a contravention to ask for the purposes of making reasonable adjustments for an assessment/interview, establishing whether a person is able to carry out a function “intrinsic to the work concerned” (for instance a blind person working in a safety-critical role), monitoring diversity and when a role may require a person to have a specific disability.

The implications for employers would therefore be to carefully consider during the application for a role, how they ask about disability or health prior to interview and in the offering a job. The most practical solution would be to ask if any specific adjustments may be required for an assessment interview to take place and then utilise OH in utilising a post-offer medical assessment. This is often done by a screening questionnaire which can be a detailed medical history going to OH professional who then offers an opinion of fitness for that role, unfitness for a role or whether any specific adjustments may be required. For instance, a person may have a mental health condition which has been stable and controlled for several years. If we assume this condition would meet the criteria of disability under the Equality Act (under Section 6), an OH professional may contact the applicant to ask about potential triggers or secondary care involvement. This may lead to a recommendation of fitness but for the employer to consider performing a stress risk assessment in line with the Health and Safety Executive stress management standards to identify potential stress triggers which can then be monitored and mitigated for accordingly.