Ben Williams, barrister, Kings Chambers
Opinion: Recruitment procedures must be savvy to health issues
20 June 2011
10 December 2013
Can an ET insist expert medical evidence is provided about an alleged disability and the employer should bear the cost of obtaining it?
6 May 2014
6 March 2014
31 July 2014
9 July 2014
The decision by Aston Villa FC to part company with its manager Gerard Houllier should give employment specialists pause for thought when advising clients on the issue of pre-existing medical conditions within their recruitment processes.
The 63-year-old missed the final month of the season after just nine months in the job. When he was diagnosed with a heart problem the club’s owners began looking for his replacement, despite claims that Houllier intended to return to the game. Although it does not appear that the club will face a legal challenge, employers are on shaky ground if they think they can risk-manage a similar situation and avoid the same problem.
The recruitment process has always been an important factor in the continued success of a business, but is also one that involves risk. Securing the right person for the job, while also being aware that CVs and references should be authentic, is crucial. But in deciding upon that person, employers are required by law to treat everyone the same so that those with disabilities will not be pushed aside in favour of others.
Protection for applicants with disabilities has recently been widened with the introduction of the Equality Act 2010 to include the recruitment process. Prospective employers are not allowed to ask about the health of an applicant before shortlisting them or offering them a job. Neither can they ask a referee about a candidate’s attendance record. If evidence came to light that, for example, an employer was routinely asking prohibited questions when recruiting, the Equality and Human Rights Commission (EHRC) would be able to launch an investigation.
It is not the questions themselves that are discriminatory, however. It is acting on the answers that can be. If an applicant did not get the job on offer and ultimately complains through the EHRC, then the employer would have to satisfy a tribunal that there was no discrimination in the selection process. This may be problematic if the employer has failed to amend its practices in line with the Equality Act.
Not all pre-employment health queries will cause a prospective employer to fall foul of the act though. For example, an employer may enquire about an applicant’s ability
to undergo an assessment, or whether or not the employer will need to make any reasonable adjustment in connection with the assessment. Asking health-related questions is also permitted once a job offer has been made. For example, the individual may be asked to undergo a medical after a conditional job offer has been made; or if a job entails heavy lifting, for example, then an employer can properly ask a question that is aimed at finding out whether the applicant can perform such a task.
Employers should be alive to requests for feedback from unsuccessful applicants. Of course, it is important to be constructive in any criticism and if necessary explain that the better-qualified or better-suited individual got the job, but this all points to the importance of having a structured and consistent selection process that an employer can refer back to in the event of a claim being brought by a disabled person, for example. Good practice would include a checklist of standardised questions at interview and would undoubtedly include the accurate recording of answers given in the event that an employer needs to refer back to these, for example at future disciplinary meetings.
The sensitivity with which employers have to treat pre-existing medical conditions cannot be overstated when you consider the following scenario: while lying on a CV or in the interview process will likely constitute gross misconduct and result in dismissal, an employer that asks a prohibited question which is met with a dishonest answer would probably not be able to rely on that as an act of dishonesty justifying dismissal. In the event that such an individual was dismissed, it would be strong evidence of discrimination and no tribunal would be impressed if the basis for dismissal was a failure to answer accurately a question that should never have been asked in the first place.