By Mike Fitzsimmons, Senior Policy Consultant, Moorepay.
Despite – or in some cases because of – Covid-19, many companies are actively recruiting. The challenges of recruitment involve far more than just finding the right candidate. You must also consider what you can and can't ask at application, interview and job offer stages. Not forgetting the GDPR implications and impact of Covid-19 vaccination statuses.
Can you ask job applicants about their health? And what about Covid-19 vaccination status? Keep reading to find what you're legally allowed to ask - and what you aren't!
The rules under the Equality Act
Since the Equality Act 2010, normally you cannot ask anything about a candidate’s health as part of the recruitment process. One key exception is whether a candidate has any specific requirements to enable them to attend an interview (e.g. wheelchair access).
Avoid asking anything related to their personal health until you’re ready to make an offer of employment. And make that offer conditional if you want them to complete a medical questionnaire. Don’t establish a contract until you’re satisfied with the outcome.
You may envisage the prospective employee’s general practitioner providing additional information. In this case, the candidate has the right - under the Access to Medical Reports Act - to see the report before you do. This right normally doesn’t apply where your own occupational health practitioner reviews the candidate’s health. It normally only applies where the practitioner has, or is, supplying care to the individual.
Special category data
Since 2018 there’s been an additional complication. The provision of health information is what is called ‘special category data’ under the UK General Data Protection Regulation/Data Protection Act. That means there are additional hurdles to jump. These include ensuring the data is only required for a legitimate purpose, gathered securely (e.g. not via open email) and held confidentially for no longer than necessary.
Ideally, you will confirm your organisation’s policy about handling special category data whenever you issue medical questionnaires. You may also have an obligation to undertake periodic health assessments for certain categories of your existing staff (e.g. night workers or those potentially exposed to hazardous substances).
What to avoid
Whatever the reason for asking questions about someone’s health, you must ensure that the request is legally compliant and limited to what is necessary.
Avoid unnecessarily intrusive or potentially discriminatory requests. It’s fine to ask something specifically relevant to the role to ensure fitness and/or protect health and safety. But avoid potentially dangerous excursions – have you had children, how many, and how old are they now?
Asking a prospective office administrator their height or weight is unlikely to be legitimate. Asking a care worker if they’ve had a sexually transmitted disease would be unnecessarily intrusive. However, asking a prospective HGV driver do they have fits, seizures or epilepsy is related to the role. Similarly, asking a mobile engineer if they might have difficulty travelling, driving, sitting for lengthy periods, or working in enclosed spaces may be perfectly reasonable.
The key is to ask no more than necessary for that particular role, to ensure your prospective (or current) employee’s health and safety. Always strive to be consistent with who and what you ask.
Can you ask about Covid-19 vaccination status?
One hot topic right now is whether you can ask for someone’s Covid vaccination status or impose a ‘no jab no job’ policy. At present, only staff who work (even occasionally) in CQC regulated homes providing residential nursing and personal care in England can be compelled to have Covid vaccinations.
This is likely to be extended in 2022. For now, it's difficult and risky to compel anyone to provide their vaccination status or require them to be vaccinated. It may be a question you decide to ask new candidates for employment and you may be able to justify it (for example if the role requires international travel). However, even this isn't risk free and could possibly lead to a discrimination claim.
If staff are happy to tell you their vaccination status and no record is made, this is not covered by ‘special category’ GDPR provisions. Where you intend to record and retain it – and if you have good reasons for asking in the first place you will almost certainly want to do so - you must observe the statutory provisions for collecting such data. Medical questionnaires you ask prospective employees to complete will also inevitably include ‘special category’ data.
Sign up to Moorepay’s monthly newsletter and receive helpful HR updates and advice like this – straight to your inbox.