It is now clear that you shouldn't ask a job applicant about their health before making an offer of employment; well you can sometimes, but only if necessary. What is necessary?
That depends on your definition of intrinsic. Confused? Probably, but you shouldn't be as this is the government's attempt at simplification. The Equality Act 2010 is designed to be one consistent approach to the many discrimination laws created over the past thirty years.
However, a key new feature is the prohibition of asking health related questions at application stage (i.e before an offer has been made). This is because research has proven that those with a disability are less likely to apply for jobs because of these intrusive recruitment questions.
As a result, from 1 October 2010, it is unlawful to ask any health related question prior to making an offer of employment. That is, unless you fall within one of the specific exemptions. Potentially the most useful of these is that you can ask health questions if they are intended to establish whether the applicant will be able to carry out a function that is intrinsic to the role. As usual, little guidance is offered on what this means in practice. You are unfortunately therefore in the dark until we lawyers can analyse case law and steer you in the right direction.
The Act does also allow charities to restrict their benefits to people with a shared characteristic but whether this could be extended to recruitment will also be answered by case law. Could it be argued as intrinsic to have a particular disability (or not) to work for a specific charity? There could be situations where it would be beneficial to employ people with certain characteristics and not others, but beneficial is not enough - it has to be intrinsic. Fundraising and membership can be limited to just those with the particular protected characteristic but not recruitment?
If you do need to ask certain questions, to stay on the right side of caution you could make an offer conditional on the satisfactory return of a health questionnaire. But by this stage a lot of time and effort will have been invested by the potential employer and employee.
In addition it is potentially difficult for an employer who can not ask general questions when faced with someone clearly disabled in front of them. However, by far the safest option, which to be fair is also what the Act was aiming towards is, don't ask unless you absolutely need to know for some genuine reason. Recruitment staff are not medically trained and so they should not be making decisions as to someone's capabilities based on their often misconstrued idea of what the answers mean.
If you are concerned whether your charity is employing lawfully speak to an employment law specialist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
