Pre-employment Checks & Agency Workers – FAQs

Date: 03/10/11

Pre-employment Checks & Agency Workers

Question:

Can Pre-employment Health Questionnaires (in respect of the Equality Act 2010) be used by employment businesses supplying agency workers to end clients?

Answer:

The Equality and Human Rights Commission (EHRC) Code of Practice of Employment should be used when developing recruitment policies, process and practice, as well as interpreting what is permissible within the Equality Act.  You may follow this link to access the Code of Practice:

http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employercode.pdf

The Code of Practice is relied upon in courts and employment tribunals when making decisions. 

Essentially it is unlawful for an employer to ask an applicant about their disability or health until the application has been offered a job. See the EHRC Code of Practice on Employment (Part 1) which states that:

(Para 1.1) “Except in the specific circumstances ..., it is unlawful for an employer to ask any job applicant about their disability or health until the applicant has been offered a job (on a conditional or unconditional basis) or has been included in a pool of successful candidates to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. Questions relating to previous sickness absence are questions that relate to disability or health.  (S.60 of the Equality Act 2010)”.

The statement “has been included in a pool of successful candidates to be offered a job when a position becomes available” is intended to cover agency workers who are recruited by an agency and who are awaiting work.

There are however certain exceptions to this rule. The Code of Practice highlights (page 27-128) there are exceptions to the general rule prohibiting disability or health-related questions and states that the following are situations where such questions may be asked:

• To assess whether reasonable adjustments are required for assessment and interviews
  
• Where the question is intrinsic to the role – “an employer may only ask about disability or health (before the offer of a job is made or before the person is in a pool of candidates to be offered vacancies when they arise) where the question relates to a person’s ability to carry out a function intrinsic to that job. Only functions that can be justified as necessary to a job should be included in a job description. Where a disability or health-related question would determine whether a person can carry out this function with reasonable adjustments in place, then such a question is permitted.”  The Code of Practice provides the following example.

Example: A construction company is recruiting scaffolders. It would be lawful under the Act to ask about disability or health on the application form or at interview if the questions related specifically to an applicant's ability to climb ladders and scaffolding to a significant height. The ability to climb ladders and scaffolding is intrinsic to the job.

In so far as disability and health enquiries after a job offer - The Code of Practice also highlights the following point in respect of disability and health enquiries:

 “If an employer is not in a position to offer a job, but has accepted applicants into a pool of people to be offered a job when one becomes available, it is lawful for the employer to ask disability or health-related questions at that stage.”

This exception will be applicable in the case of agency workers, meaning that once an agency has taken on a candidate it could ask questions of their health in order to ascertain whether roles they may be offered would require suitable adjustments to be considered.  If you do ask agency workers questions about their health at this stage, we would recommend that you provide reassurance to them that such information would not be passed on to the end user/hirer unless it were necessary to do so for the purpose of making adjustments. 

The agency's team would need to be fully disability competent to avoid the potential of bias when selecting candidates to put forward to vacancies from the talent pool.  

We recommend that you seek legal advice for further clarity on: 

• The process of selecting candidates;
• Permissible pre-employment health questions to ask of applicants placed in your talent pool; and
• Determination of whether a duty is ‘intrinsic to the role' in order to warrant pre employment health questions being lawful.

This advice is intended for general guidance only and is not a substitute for specific legal advice following the receipt of detailed instructions. Should the reader require legal advice they should contact DWF LLP.

DWF are supporters of  www.clearkit.co.uk/