It is very common for employers to ask prospective employees to complete a medical questionnaire as part of their pre-employment checks, but there are restrictions on what questions you can ask, when you can ask them and what you can do with the information. Here’s our quick guide.
When to ask questions
It’s fine to ask prospective employees to complete a questionnaire or answer health questions, although under the Equality Act 2010, you cannot now do so until a job offer has been made to the individual in question. Medical questionnaires cannot be part of the selection process itself.
There are some limited exceptions to the restriction on asking questions prior to a job offer, such as if you need to establish whether the candidate will be able to actually carry out the role in question. If heavy lifting is an intrinsic part of the role in question for example, it is fine to ask questions to establish whether they will be able to perform that function. However that doesn’t mean you can ask more general medical questions – questions under this exception must only relate to the relevant activity.
Another exception is about any requirement for reasonable adjustments to be made to the selection process, for example accessibility to interview premises or similar. Again, the question must only relate to whether reasonable adjustments are necessary to allow the candidate to take part in the selection process, and cannot explore what adjustments may be necessary for them to actually perform the role.
A further exception is equal opportunities monitoring. Whilst asking whether a candidate has a disability does count as a health question, if you are asking this on an equal opportunities monitoring form for the purposes of monitoring diversity, that is acceptable.
Consent and processing information
Information about a candidate’s health is classified as a “special category of personal data’ under the Data Protection Act, which means you must have one of the specifically required legal grounds for processing the data. If processing it is necessary to establish an employee’s fitness to do the particular work, to comply with health and safety obligations, that would be sufficient, but it is advisable to also seek specific consent.
You must also have in place a policy document that explains how you comply with data protection requirements and principles in relation to the special category data.
One of the reasons employers used to issue medical questionnaires prior to job offer was because they wanted to make sure they were satisfied with an employee’s health record before offering them the job.
While you can no longer ask questions before offering a job, it is still possible to make a job offer conditional upon satisfactory health checks. However it is advisable to be extremely cautious before withdrawing an offer if you feel the result of a health check or the answers on a medical questionnaire are not satisfactory as there may be a risk of a disability discrimination claim.
Withdrawing an offer for health reasons
If there is the possibility that the applicant may have a disability, you should use the information on a medical questionnaire to help you establish what reasonable adjustments to make to the role, rather than as a reason to withdraw the offer.
It would only be acceptable to withdraw an offer because of health information relating to a disability if the health issues mean that the candidate would not be able to perform the role and that no reasonable adjustments are possible to enable them to do so.
So before considering withdrawing an offer for any health reasons, regardless of whether or not it is clearly a disability, you should seek further information about the medical condition and its impact on the candidate’s ability to perform the role in question, and consider what reasonable adjustments could be made to enable them to take up the post.
Don’t assume no adjustments are possible, but take advice about what options might work, and genuinely consider them before making a decision.
If you are concerned about medical checks or about offering a role to someone with health problems, do get in touch for some advice.