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Practice dilemma: Pre-employment health checks

Your practice is recruiting a new healthcare assistant – can you make enquiries about their health in the recruitment process? Our legal expert advises.

It is common for employers to want to make enquiries into a person’s health during the recruitment process. However, this should be done with caution to avoid discriminating against individuals because of a disability, or their age.

The issue of pre-employment questionnaires has been specifically addressed in the Equality Act, which came into force last month.

This Act replaces harmonises and strengthens previous legislation on discrimination. Under the Act an employer must not ask about the health of an applicant before short-listing them, or offering work except where:

1. It is for the purposes of identifying whether any reasonable adjustments need to be made for the recruitment process.

2. To establish if the individual will be able to carry out a function which is intrinsic to the work concerned.

3. For monitoring diversity.

Unfortunately, there is little guidance on how far questions can go and where the line between necessary and unnecessary questions should be drawn will only be addressed in litigation in due course. Until then, you should proceed with caution, especially with regard to past health problems (which are unlikely to be seen as relevant to current capabilities) and limit questions about their current health to where these are necessary to make adjustments in the recruitment process (e.g. arrangements for the interview) or where health is clearly intrinsic to the role in question.

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards