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Health related questions to applicants


Wildflowers
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I believed that I kept myself aware of new legislation, but missed the one about not being allowed to send a health questionnaire, or even ask health related questions, to an applicant before offering them a job. Thinking that perhaps someone else doesn't know, here is the explanation our very helpful Senior Development Officer sent me:

 

he Equality Act 2010 now makes it illegal to ask health-related questions or ask the new staff member (paid and volunteers) to complete a health questionnaire before you have offered them a job. This includes asking an applicant how many days they have had off sick (either within an application form or during the interview) before a job offer is made. The only exceptions to this are to help you to:

 

• decide whether you need to make any reasonable adjustments for the person during the selection process

• decide whether an applicant can carry out a function that is essential (intrinsic) to the job

• monitor diversity among people making applications for jobs

• take positive action to assist disabled people

• assure yourself that a candidate has the disability where the job genuinely requires the jobholder to have a disability

 

Although a jobseeker cannot take you to an Employment Tribunal if they think you are act unlawfully when recruiting, they can complain to the Equality and Human Rights Commission. However, if you do ask prohibited questions, and then not employ the applicant, they may bring a claim of discrimination against you and the burden of proof would be on you to demonstrate that you had not discriminated.

 

Once a person has successfully passed the interview and you have offered them a job (whether this is an unconditional or conditional job offer) you are permitted to then ask appropriate health-related questions. This can be done by asking them to complete a health questionnaire. An example Health Questionnaire template can be found online.

 

If you then find out they have a health issue which will affect their work, you will need to first consider what reasonable adjustments you can make to help them. If you have a justifiable reason as to why you can no longer employ them, before withdrawing the job offer or ceasing their contract you should seek medical consent from them to contact their GP to discuss the issue further and also discuss with an Occupational Health Adviser their professional opinion on whether the person is fit for the role. If you do not follow this procedure you may face a claim of direct discrimination from the person.

 

 

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Thank you for this. While I can see why this legislation is in place, it does make the process 'long-winded'. Is the best way to proceed with recruitment to make a conditional offer pending a health check in the same way as we now offer a job subject to DBS checks?

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That's the idea, as I understand it. In the meantime you may miss the opportunity to employ someone else, who may

have accepted another job offer...

 

I once employed a person with a serious back problem, without being informed about it. After lots of induction training

and bonding with children, she had to leave. Finding a replacement took time and unsettled the group and parents.

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Yes a similar thing happened to me. I employed someone with multiple and severe allergies and it turned out there were lots of things she couldn't do, including changing nappies, playing with sand and playdough, playing outside when the pollen count was high etc etc. I tried to work round it but it was really difficult and I ended up feeling like everything revolved around her. Of course we don't want to discriminate but we have a duty to the children, families and staff team to employ the most suitable person we can.

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Yes a similar thing happened to me. I employed someone with multiple and severe allergies and it turned out there were lots of things she couldn't do, including changing nappies, playing with sand and playdough, playing outside when the pollen count was high etc etc. I tried to work round it but it was really difficult and I ended up feeling like everything revolved around her. Of course we don't want to discriminate but we have a duty to the children, families and staff team to employ the most suitable person we can.

If she's not fit for the job you can get rid of her in the first year without difficulty!!

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Thinking about it I realised that we can ask applicants specific health questions,

at least that's how I understand it. For example, I could have asked the employee

with back problems (which I didn't because I assumed she would inform me) as

we carry backpacks with snack, spare clothes, first aid, water bottles etc.

Quoting the quote of my first post:

 

"The only exceptions to this are to help you to [...]

• decide whether an applicant can carry out a function that is essential (intrinsic) to the job"

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If she's not fit for the job you can get rid of her in the first year without difficulty!!

Yes, I did. It was a long time ago. It was silly of her not to have told me about all her health problems though and caused a lot of hassle.

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In my previous post I meant: I been hearing somewhere that it's not two years.

I.e.: Can an employee be asked to leave for any reason without a disciplinary procedure within one or two years?

 

(I just did it gain - deviated from the topic of the thread! Have done it twice this week - my first with you... Sorry!)

I should seek advice from ACAS instead of bothering the Forum, just wanted to correct my mistake.

Edited by Wildflowers
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You're not bothering the forum! If we were all in the same room, you'd ask us then, wouldn't you? Someone on here is very likely to have gone through what you are going through, and if not, we'll say so, just like we would if we were in a room together. So then you go and ask your EYAT or ACAS for their advice, and pop your head round the door and tell us what they said. Then you go off and follow the advice and tell us all about it, and then we all learn something new, along with you. So if It happens to one of us in the future we are forearmed!

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In my previous post I meant: I been hearing somewhere that it's not two years.

I.e.: Can an employee be asked to leave for any reason without a disciplinary procedure within one or two years?

 

(I just did it gain - deviated from the topic of the thread! Have done it twice this week - my first with you... Sorry!)

I should seek advice from ACAS instead of bothering the Forum, just wanted to correct my mistake.

You are not bothering the forum, that is exactly what the forum is here to do --act as a support group, as Cait says.

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I am currently in the awful position of having to consider a capability dismissal of a member of staff due to long term health issues and it is an emotional, moral and ethical nightmare. Sadly I have a member of staff who has given me a year long sick note as she has been diagnosed with a long term (extremely serious) health issue. Much as I would love to say to this staff member we are with you all the way and your job is here until you are able to return etc. employment law puts me in a situation where the ramifications of doing so would lead to the closure of the business and the loss of jobs for the other 7 people that I employ. If I keep the employee on the employee will continue to accrue holiday pay even though not working and the temporary member of staff that I need to take on to cover the absence will also accrue holiday pay - in effect a double whammy. In a small business with only a couple of workers paying tax and NI the statutory sick pay is not a problem as it is recoverable but the issue of an employee continuing to accrue holiday pay whilst off sick is just totally unsustainable and could lead to the business going broke.

 

Due to the nature of the employee's illness I must also consider the Equalities Act. I have spoken to ACAS and HMRC and received differing information so finally sought legal advice (thankfully this is where my PSLA membership has paid off). Even though I am fully aware of the nature of the employee's serious illness sadly I have no choice but to ask the employee to consent to me getting a medical report and even though it is doubtful that there are any reasonable adjustments that I can make to facilitate a return to work (again due to the nature of the illness) I must have a discussion about reasonable adjustments. This I can envisage is going to be a distressing meeting for all concerned. There is no way round this problem as I have been advised by the legal advisers that I must not open myself up to a claim under the Equalities act as there is no compensation ceiling!

 

As far as advice goes having spoken to ACAS and legal advisers I have been told that an employee with less than 2 years service does not have protected rights so they can be dismissed and cannot come back with a claim for unfair dismissal (assuming that the dismissal was done appropriately). However before you dismiss anyone I would recommend that you make sure you check whether your employee's health issues mean that they are considered to have a disability under the Equalities act as irrespective of length of service it becomes a whole new ball game.

 

Sadly I have to park my compassion and put my business hat on (needless to say I feel a complete S**t) :(:(

Edited by SueJ
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Suej ..the problems of being a manager are sometimes not easy. I really feel for you and wish you the best as you sort out this issue :( I'm sure your employee will understand but if she doesn't we'll be here to speak to ;) LOL Finleysmaid xx

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Yes,me too, it's horrible having to deal with these sort of issues and you will no doubt be emotionally exhausted by the end of it all.

Take care of yourself too, sometimes we have to do things that are out of our control and we have no choice.

It's a good job we've all got the forum! X

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You have my sympathy SueJ - total nightmare but you've got to follow through for the reasons you state.

 

I had something a bit similar a couple of years back and had all those horrible conversations and in the end the person resigned (and is still bitching about me) so I didn't have to sack her. I have no regrets though - it's just one of those things.

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