A ban on pre-employment health questionnaires could land employers in tribunal if they are unable to make reasonable adjustments for candidates with health issues and are forced to withdraw the job offer.

But despite the increased risk of litigation, a number of HR chiefs are backing the proposed changes, claiming the current system enables employers to discriminate against those with medical conditions during the recruitment process without fear of any consequences.

This week, the House of Lords introduced a ground-breaking clause into the Equality Bill that would, for the first time, prevent employers asking candidates questions about their health that are unrelated to the job role.

It will mean those with mental-health issues, a medical condition or a disability will not be forced to disclose their condition prior to the offer of employment, unless it hinders their ability to do the job. Campaign groups have argued employers regularly discriminate against people with medical conditions, putting people off applying for a job.

Donna Miller, HR director at Enterprise Rent-a-Car, told Personnel Today: "I accept that employers discriminate against those with health issues. And that's just HR - once a line manager gets hold of something detrimental on a health form, there's little chance for an applicant with a health issue to get through the hiring process."

What the changes would mean

Employers who ask candidates about their health pre-job offer will be required to prove at tribunal that they did not discriminate against the individual if they did not get the job. Firms found guilty of discrimination will be required to draw up an action plan, overseen by the Equalities and Human Rights Commission. Failure to comply could result in a £5,000 fine. Employers who ask candidates about their health post-job offer, who then discover they are not fit for the role, can make reasonable adjustments or justify their need to withdraw the job offer. Source: Eversheds

For this reason, the company does not use pre-job offer health questionnaires, Miller said. "Employers shouldn't be allowed to make decisions at the front end of employment about someone's health condition with which they have very little or no information about. I am in HR, I'm not a doctor."

Sonia Sharples, HR director at budget retailer Poundland, agreed it would be "naïve" to claim all employers treated those with health issues equally during the hiring process.

However, she was concerned that "more harm could be done" to individuals under the new rules. "If employers do not understand someone's limitations, it would be easy to place them in a job that they are unable to perform, causing increased stress and anxiety. Please do not tell me it's then the employer's fault and we could get challenged under the Disability Discrimination Act."

But employment lawyer and partner at Eversheds law firm, Simon Rice-Burchall, moved to calm fears that good employers could be caught out. He said firms were still entitled to screen people about health after the job offer, which would result in either making reasonable adjustments or presenting a justifiable business case as to why they could no longer employ the individual.

He said: "At the moment, an employer has a greater ability to find out about health conditions during recruitment, reject the applicant, and then mask the real reason. Employers with a genuine reason why candidates cannot perform the role on health grounds have nothing to worry about."

Remploy, which helps disabled people find work, agreed non-disclosure in the application process - provided the medical issues were irrelevant to the job in hand - would help to avoid discrimination.