Ban on agents asking health questions

Contractors should expect a recruitment process free from any questions about their health, and potentially any past disciplinary action, under new regulations now in force.

The Equality Act 2010, which took effect on October 1st, prohibits a person, to whom an application for work is made, from asking about a candidate’s health before offering them work.

Although the act provides some exemptions, the upshot is that employers, clients and recruitment agencies, acting on behalf of a client, could be held liable for querying a candidate’s health.

But for agents that supply workers to end-users, the act will cover not just health questions before the candidate is taken on, but also queries made before a role is offered.

Their liability will not be limited by the defence that the engaging client specifically requested health questions to be asked, explained Simon Rice-Birchall, partner in the HR group at law firm Eversheds.

Writing on Recruiter, he pointed out that the meaning of “asking questions about the health of [an] applicant”- which is unlawful expect in limited circumstances, is not defined within the act.

This means that even enquiring about the candidate’s disciplinary record, or days out from sickness, “could lead a prospective employer [or agent] to stray in to health issues,” he warned.

Partly as a result, employers and employment businesses were advised to review their application forms and any selection criteria in light of their new rules and make changes accordingly.