Hi,

 

I’m a bit concerned about where this leaves tutors who write references for potential employers of our current or past students.

I write around 100 references a year for my students, and without fail the request letters explicitly ask me to comment on attendance.

 

Nick Givens

 

 

In response to queries regarding the Equality Act 2010 and pre-employment health questions and assessments ECU has produced the following FAQ (http://www.ecu.ac.uk/your-questions/pre-employment-health-questionnaires)

 

______________________________________________________________________________________________________________________

Does section 60 (pre-employment health questionnaires) impact upon our existing recruitment policies and practices?

1. Recruitment process

Section 60 of the Equality Act 2010 relates to the use of health questions during recruitment exercises. The use of health related questions during recruitment is a common practice within employment, so the introduction of this section could have a particular impact on the existing recruitment policies and practices used within the higher education sector.

During recruitment exercises, section 60 will prohibit employers from asking about the health of applicants:

=        Before offering work to an applicant

=        Or, before including the applicant in a pool of applicants from whom the employer intends to offer work to in the future

 

For example, it will not be permissible to ask questions that aim to establish how many days of sickness absence an applicant has accrued during previous employment prior to the candidate being made a conditional or unconditional offer of work.

 

It is important to highlight that asking about an applicant’s health does not in itself contravene the Act, but rather the way in which such information is used, may contravene the Act.

Under section 60 (6), employers will still be able to ask questions that are for the purposes of supporting disabled applicants during recruitment exercises, such as:

=        Establishing whether any reasonable adjustments will be required to ensure that the applicant can participate in interviews and other forms of selection assessment;  

=         Establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned (e.g. if the job involves driving there may be a requirement to have a particular level of eye sight);

=        Monitoring diversity in the range of people applying for employment – useful in identifying and prioritising actions to tackle barriers to employment;

=        If the vacancy has a requirement for applicants to have a specific impairment;

=        Or, to take positive action under section 158. To ensure that an applicant who is a disabled person can benefit from measures aimed at improving representation and employment rates of disabled people. For example, the guaranteed interview scheme (also known as the Two Ticks Scheme). The aim of this scheme is to encourage disabled people to apply for jobs by offering an assurance that should they meet the minimum criteria they will be given the opportunity to demonstrate their abilities at the interview stage

 

It will be important for HEIs to make it clear to all applicants as to why questions are being asked and for what purpose the information give will be used. A clear statement of intent outlining these practices should be applied across each stage of the recruitment process (application, short listing, interview and the offer) to ensure transparency and fairness.

There may be some concerns in regards to the interplay between section 60 and fitness to work or practice. Whilst such concerns may arise thereafter, as the result of a health assessment following a job offer, these will now need to be managed as capability issues

2. Offer of work

Other than exceptions listed under sub-section (6) an employer would not be permitted to ask the applicant other health questions until a candidate has been offered the a job.

Section 60 (10) states that a reference to offering work is a reference to making a conditional or unconditional offer of work. 

 

A conditional offer of work may be an offer pending references and/or health assessment. Therefore, as part of a conditional offer of employment, it is likely to be permissible to ask about

a person’s health and involve occupational health practitioners. 

 

Section 60 (13) states that a whether or not a person has a disability is to be regarded as an aspect of that person’s health. Therefore, the confirmation of a job offer, if based on the use of health assessments, needs to be stringent in compliance with other sections of the Act, such as reasonable adjustments, to avoid discrimination against disabled people.

 

 

 

 

Fehmeeda,

 

My reading of the EHRC’s latest guidance on the Equality Act 2010 (Guidance for employers Vol 1 of 7) is that it remains lawful for employers to make job offers conditional on the outcome of a pre-employment health assessment. I quote in full the example provided on p76:

 

“An employer is recruiting a person as a cycle courier. They ask applicants to send in a CV setting out their relevant experience and a covering letter saying why they would be suitable for the job. The employer will score candidates on their experience of and enthusiasm for cycling. It is not necessary to ask applicants questions about health or disability. If the employer considers a health check is necessary, for example, for insurance purposes, this can be carried out once an applicant has been offered the job, and the job offer can be made conditional on the health check.” (my emphasis)

 

Perhaps the interesting phrase here is “if the employer considers a health check is necessary, for example, for insurance purposes” because it sets some sort of framework for limiting the use of pre-employment questionnaires; but is this guidance clear enough?

 

Certainly, I can relate that, at a presentation given by a legal practice to HR advisers here, the line was that job offers can be made conditional on the outcome of a health assessment.

 

I would be very interested to hear ECU’s position on this question.

 

Ken

 

 

 

 

Dear All,

We are in the process of preparing as much as we can for the implementation of the new Equality Act.  In terms of pre-employment health screening, this only applies to candidates who have been offered the job and we have ensured that the questions are non-discriminatory or overly intrusive etc.  We understand that in general, any job offers should not be conditional on the outcome of the pre-employment health assessment of medical fitness for work.  Whilst concerns about medical fitness for work may arise thereafter (as a result of medical assessment of fitness for work undertaken following the job offer) these will now need to be managed as capability issues.

I was wondering if colleagues had many any changes to their offer letters yet as a result of the above provisions?

Kind Regards

Fehmeeda

Fehmeeda Riaz

University of Westminster

HR Manager - Equality & Diversity

HR Department, 2nd Floor,

Cavendish House, 101 New Cavendish Street

London, W1W 6XH

Tel: 020-7911-5776

 

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