From the TUC

Bin pre-employment health screening

17 Jul 2017, By

Last week Iberian Airlines, part of the same company as British Airways, were fined €25,000 for asking a recruitment company to do medical screening of prospective cabin crew that included checking whether female applicants were pregnant. They did this before decided whether to offer them a job.

Now you may ask how things like this are happening in this day and age, but you would be amazed how common it is, and not only in Spain but here in the UK. Several unions have reported that employers are sending out health questionnaires to job applicants, or even sending shortlisted candidates for a medical. 

But it shouldn’t be happening. The law is clear and simple. It is unlawful under the Equality Act 2010. Yet just do a google search for “pre-employment health screening” and you will get hundreds of companies offering the service and only a tiny number of those that I looked at made it clear that it can only be offered after interview and offer of post. In fact a number of providers stress that employers have to do it to protect the safety of both the other workers and the applicant.

So it is not surprising that I also found a lot of posts on bulletin boards from people who have been asked to attend a health assessment before being offered a job. Often they are people with a history of cancer, mental health disorders, HIV, or, as in the case of Iberian airways, because they are pregnant. What they all say is that they are concerned that there is no way they will get the job if this is declared, but they also know they can be sacked if they give misleading information. In some sectors, this kind of testing seems to be the norm.

If you apply for a job, employers can’t ask you questions about your health, whether you are pregnant, or if you have a disability before they offer you the job, or before placing you in a pool of candidates it is considering. Nor can they ask you on the application form. This includes questions about your previous sickness absence. Employers also can’t refer you to an occupational health adviser or ask you to fill in a questionnaire provided by an occupational health adviser.

The reason for this is to stop employers from refusing to employ people who are disabled or pregnant. If you are disabled then they can discuss with you – after they have offered the job, what adjustments need to be made for you. If you are pregnant then you are entitled to maternity leave.

There are a few exceptions, such as asking if you need any adjustments to come to interview, or if there are any factors that might limit your ability to do some form of assessment during the interview process. Some employers provide guaranteed interview schemes for disabled applicants. In these circumstances it may be lawful to ask about an ability. Monitoring forms can also ask about a disability, but have to be kept separate from the application form.

There are a few jobs where something may be intrinsic to the job and, in some circumstances, that can be asked about, but they can’t use that as an excuse to do a general screening. One of the few exceptions is seafarers, where the Merchant Shipping Regulations prohibit the employment of seafarers unless they have a valid medical fitness certificate, but there is clear guidance about what can be tested for.

Once you have been offered a job it is a very different situation and health screening can be helpful, especially if you are disabled and need adjustments. Often job offers are conditional on receiving satisfactory pre-employment checks, including medical checks and references. Employers are allowed to do this under the Equality Act. If the checks show you’re disabled, the employer should consider what reasonable adjustments may be necessary so you can do the job. If an employer doesn’t offer you the job because the checks reveal you have a disability or are pregnant it may be unlawful disability discrimination.

Also there are some statutory health surveillance requirements that recommend a pre-employment base-line assessment such as the Noise at Work and lead regulations, but that should only be done after there is a firm offer of a job.

If you are asked to undertake any kind of pre-employment screening, challenging it can be very difficult. When you are applying for a new job you are very vulnerable as if you refuse screening it is unlikely that you will be employed. If you agree to the assessment and do not get the job you could have a claim for unlawful discrimination if the employer uses any information about your health to make their decision, but it is very difficult to prove.

That’s why it is really important that unions challenge any practices that may be in any way discriminatory before an incident arises. If your employer, or any agency providing your employer with staff, does any form of pre-employment screening before jobs are offered, then point out the law. If they continue, then seek advice from your union about challenging it, or publicising it. In addition, if the screening is being done by an occupational provider, or a doctor, then you can make a complaint. Most occupational health providers are members of SEQHOS and should know better. All doctors are covered by GMC ethics codes and cannot do anything unlawful.  In both cases a formal complaint to SEQHOS or the GMC is likely to put an end to the practice.

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From the TUC