Occupational Health Standards.
Pre-Placement Prohibition on Requesting Health Information
In order to minimise any opportunity to discriminate against disabled job applicants, Section 60 of The Equality Act places a general prohibition on requesting health information during the recruitment process, prior to making a job offer. So you could make a job offer unaware that your new starter has a health condition which:
- Renders them unable to perform a fundamental or intrinsic requirement of the job. Examples might include a Scaffolder with a disability which renders them unable to climb a ladder or an HGV driver who has un-correctable impaired vision.
- Breaches your legal obligation to control risks to the health, safety and welfare of your new starter, colleagues, customers and the public. Examples might include an employee at risk of seizures or a severe allergic reaction which requires urgent action by designated colleagues (e.g., who know where to find and administer your employee’s EpiPen).
- Breaches your legal obligation to make reasonable adjustments for a disability under the Equality Act.
Exceptions to the general prohibition:
The Equality Act allows a specific exception to the general prohibition in order to assess health conditions preventing the applicant from performing an intrinsic requirement of the job which cannot be accommodated with reasonable adjustments. This specific exception helps you to avoid employing the scaffolder who is unable to climb a ladder or the visually impaired HGV driver.
The Equality Act also allows other exceptions to the prohibition. They don’t relate to health assessment but we list them here for the sake of completeness:
- If a particular disability is actually an occupational requirement of the job.
- To identify the need for any reasonable adjustments during the remainder of the interview process (e.g., tests and case study exercises).
- To monitor the diversity of people applying for the job.
- To positively discriminate with respect to health, i.e., to treat disabled applicants better than non-disabled applicants.
Approaches to requesting health information.
You might screen out candidates / job applicants who fail to meet the intrinsic requirements of the job by:
- Specifying the intrinsic requirements as screening questions on the job application form.
- Ask for the relevant health information at interview.
However, these two approaches are prior to the job offer which means you are prohibited from requesting sufficient additional information to assess whether the intrinsic requirement can be accommodated by reasonable adjustments. Depending upon these approaches alone creates a risk of breaching your legal obligation to identify reasonable adjustments.
Instead, you might also make the job offer conditional upon the outcome of pre-placement screening. This approach has two key advantages:
- You can request additional health information to identify:
- Needs for reasonable adjustments.
- Pre-existence of health conditions which can also be caused or aggravated by the job. This “baseline health information” might prove to be a valuable insurance in the event of any future claims for occupational injury.
- The assessment is conducted by an experienced and qualified occupational health practitioner who is:
- More likely to identify a need for adjustments.
- Able to ensure the information requested complies with other applicable regulation, in particular the Data Protection Act.
Approaches to pre-placement health screening.
Questionnaire based screening is:
- Sufficient for lower risk jobs (e.g., office-based).
- Quick and cost effective, especially for; SMEs, companies outsourcing their occupational health needs and organisations with a widely distributed or remote workforce.
- Recommended by the ICO in preference to a medical examination, or as a means of selecting individuals required to undergo a medical examination.
Medical examinations can include:
- Lung function and / or skin sensitivity testing for jobs involving baking, painting or insulating.
- Audiometry testing for jobs on factory production lines.
- Hand arm vibration (HAV) testing for jobs involving the operation of machinery.
- Testing for isocyanate exposure.
Certain occupations are subjected to regulation and codes of practice which can include a requirement for specialist medical examinations. They include:
- Health care professionals.
- Professional drivers (LGV, train, lift truck).
- Flight crew.
- Emergency services personnel (Police, Firefighters, Ambulance, Coastguard).
- Food handlers.
- Confined spaces workers.
- Workers at heights.
- Safety critical workers.
- Offshore crew.
They are typically the highest risk jobs where specialist medical examinations can be worth the investment given the inherently higher materiality of breaches to your legal obligations.
A specialist medical process can take some time to conclude; good practice is to conclude within 6 weeks of your new starter taking up their job.