Medical Questionnaires

The Equality Act 2010 banned the common practise of employers seeking medical information about potential employees.

The medical questionnaire had become a common feature for those seeking employment. The range of information sought has frequently been extensive with detailed questions covering an applicant’s medical history.

Many disabled people are thought by the Government to be discouraged from pursuing a job application in such circumstances. It was for this reason that The Equality Act which has consolidated the law on discrimination included a section which requires employers not to ask such questions of job applicants except in very limited circumstances.

Employers who fail to take heed of this could face an investigation from The Commission for Equality and Human Rights and the service of an unlawful act notice.

Experience tends to suggest however that the commission is unlikely to concentrate its fire on small and medium sized enterprises (SME’s) certainly in the short term but will instead concentrate on the major players.

In any event it would be a mistake for SME’s to ignore this issue. The reason for that is quite simple. If medical questions are asked contrary to the prohibition and Tribunal proceedings are brought what lawyers call the burden of proof is likely to be reversed. In other words the employer will have to prove that there was no discrimination and that may not be easy. The only certainty is that it will be expensive. All employers should therefore carefully review their recruitment procedures.