• Asking job applicants and employees about their health: how to stay on the right side of the law

    Asking job applicants and employees about their health: how to stay on the right side of the law

    When recruiting and managing employees, employers want to know that their employees are up to the job and in the post COVID world, whether might they pose a risk to other employees, clients or customers. While asking questions about an individual’s health at the wrong time may result in a disability discrimination claim, ignoring the signs of a potential disability can also be risky. Zoe Lagadec, employment law expert with Mulberry’s Employment Law Solicitors in London, navigates a way through these sensitive issues.

    Why should I be careful?

    Job applicants and employees with a disability are protected by the Equality Act 2010. A disability is a long-term physical or mental condition that significantly and adversely effects an individual in carrying out day-to-day activities. Disabled employees may be protected from less favourable treatment or being disadvantaged because of their disability. To level the playing field, employers may also need to make reasonable adjustments for disabled individuals.

    Although it is outside the scope of this note, please remember that whenever you deal with information about an individual’s health, strict data protection rules apply.

    Can I ask job applicants about their health before making a job offer?

    Employers must not ask applicants about their health before offering a job, other than for a few specific purposes. For instance, you can ask about an applicant’s health to find out if you need to make any adjustments to facilitate recruitment. Specific questions about the applicant’s ability to perform activities intrinsic to the job (once any reasonable adjustments are taken into account) may also be permitted.

    Can I ask about attendance records?

    Although employers want to ensure that any new recruits are reliable, asking about previous attendance records before offering the job effectively involves asking about health. As such, it is prohibited. If it influences a decision not to appoint a disabled individual, an employment tribunal may find that the decision was discriminatory.

    Once you have offered the job, you can include questions about attendance records in a pre-employment health check. Take care as to how you then use this information, as explained below.

    Can I make a job offer conditional on a health check?

    The Equality Act 2010 prohibits employers from requiring job applicants to undergo a medical examination or to complete a health questionnaire before being offered a job. You can though, as many employers do, make a job offer conditional upon the applicant satisfactorily completing a medical questionnaire or assessment.

    However, if you are concerned about the results of the health check, seek advice before turning down the applicant. Withdrawing the job offer as a knee-jerk reaction could prove risky, particularly if you make assumptions about the individual’s capabilities. It may be possible to lawfully withdraw the offer but usually only after considering if the applicant has a disability and, if so, considering if there are any reasonable adjustments you should make and whether or not you can lawfully justify not taking on the individual.

    What about current employees?

    An employee’s disability may not be picked up at recruitment or it may only develop after the employee has started working for you. Employers have a responsibility to look out for signs of disability and to take the disability into account where this might have a bearing on an employee’s attendance, performance at work or ability to get along with colleagues. In these circumstances, it may well be necessary to sensitively ask relevant questions about the employee’s health.

    Employers are often surprised by the extent of this responsibility, commenting ‘but the employee did not even tell me they were disabled’. It is worth bearing in mind that employees may not consider themselves to be disabled, but they are still protected by law.

    When should I ask about disability?

    As the recent Employment Appeal Tribunal (EAT) case of Baldeh v Churches Housing Association highlights, if an employee mentions a health condition that could be a disability you should not ignore it. In this case, a support worker was dismissed for her performance and behaviour. The employer did not realise that she was disabled due to depression. However, at her appeal against dismissal she spoke about her depression and how this could affect her behaviour. The employer later admitted that her mental health condition was a disability.

    The EAT considered that the employer, when rejecting her appeal, may have known enough about her mental health to consider if this influenced her behaviour that led to her dismissal. The case was sent to a new tribunal to look into this and whether the employer should have taken her depression into account.

    The message here is that managers need to be alert to any health issues that could be a disability and should not rely on the employee to label their condition. Instead, you may need to find out more about the employee’s health.

    What can I ask?

    Try to avoid making assumptions about an individual’s health. Any questions need to be sensitive and relevant to the job or the issue at work. Rather than trying to assess the employee’s condition yourself, and given the sensitivities and the need for specialist expertise, it is often best to involve an occupational health adviser.

    Can I ask about an employee’s vaccination or COVID history?

    If you intend to ask employees if they have been vaccinated against coronavirus (COVID-19) you must be clear about your reasons for doing so. To comply with data protection obligations, you must ensure that you have a reasonable legal basis for processing such information and that you have complied with the conditions for processing special category data (relating to employees’ health) under the UK GDPR.

    The Information Commissioner’s Office has helpfully published guidance for organisations on the collection of vaccination data and when this can be justified. Depending on your reason for asking about vaccination status, you may be able to rely on your legitimate interests and compliance with employment rights and obligations as the basis for processing such data.

    It is likely to be easier to justify collecting such information in certain workplaces, for example in a medical or care setting where coronavirus presents a high risk to others.

    You should consider carrying out a data protection impact assessment before collecting vaccination data. Our link shows the current Health and Safety Executive Guidance.

    If you do collect personal data concerning an employee’s COVID vaccination record or history of the disease, you must ensure that it is kept securely and that it is shared only with the those who need to access it. It must be kept for no longer than necessary. You could consider keeping redacted records, if the aim is to monitor levels of vaccination across the workforce, rather than recording whether specified employees have been vaccinated.

    You must also provide employees with information about how and why their vaccination data is being processed. This could be an update to an existing privacy notice or could be provided as a separate document or your intranet.

    Any attempt to impose a mandatory vaccination policy will pose numerous risks of a number of potential legal claims and employee relations issues. However, strongly encouraging employees to have the vaccination should pose no issues as long as such encouragement is not unduly oppressive or discriminatory.

    You could also consider re-opening your work setting to vaccinated employees only or those who are willing to undertake daily lateral flow tests, in line with the Government Guidance, having those who are unvaccinated continuing to work from home. Any such requirements or arrangements should be subject to exceptions for those employees who cannot accept the vaccine due to medical or religious beliefs. The impact of such measures should also be considered to ensure that they are not discriminatory. Currently only employers in the care sector in settings regulated by the Care Quality Commission will have the protection of legislation to mandate the vaccine as the Government has announced that such workers will be required to have the vaccine on health and safety grounds from October. 

    For advice on ensuring your processes are not discriminatory and you are taking appropriate data protection procedures, as well as for pragmatic advice on dealing with an individual who may have a disability or your post COVID return to work arrangements, please contact Zoe on 0203 8587965 or email zoe@mulberryssolicitors.com

    This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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