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'how are you?' 'don't ask'

8 October 2010

The long awaited Equality Act 2010 came into force on 1 October 2010. Some critics claim it is ‘political correctness gone mad'; others point out it is essentially an amalgamation of the existing legislation, with some extras thrown in.

There is one issue, however, which all employers should be aware of. It is now illegal for employers to ask job applicants about their health except for limited purposes. Pre-employment health questionnaires are standard practice for many organisations.

Permitted purposes include:

  • to establish whether adjustments are necessary for the interview
  • to establish capacity to carry out a function intrinsic to the work
  • diversity monitoring

Many application forms ask about levels of sickness absence. That may now be prohibited unless good attendance is necessary for the person to meet the intrinsic requirements of the work. One could argue that attendance is so fundamental for any work that it is always an intrinsic requirement. We can’t guarantee all employment tribunals would agree but would welcome the opportunity to run the argument.

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