Employers understandably want to know as much as possible about the health of applicants for jobs. They have concerns about the cost of employee sickness and absenteeism and the risks of liability under the Disability Discrimination Act or work related ill-health. While it makes sense to make enquiries, there are a number of legal issues to be aware of when doing so:

  • If you make passing a medical a condition for all applicants, this may discriminate against people with disabilities. Think about whether it is really necessary for everyone to undergo a medical. Take care to define the parameters for the medical - the level of fitness required for an offshore worker will not be appropriate for a clerical or other office-based job. The other side of the coin is that failing to make reasonable adjustments in the recruitment process to allow for disabilities could in itself be unlawful discrimination. To avoid this it is prudent to ask applicants to let you know if they have special needs which you need to take into account in the selection process. Examples might be hearing or mobility problems.
  • Remember to obtain proper consent to the medical and, if necessary to access medical records. You must comply with the provisions of the Access to Medical Reports Act 1988 and the Access to Health Records Act 1990.
  • Information about health is "sensitive personal" data within the scope of the Data Protection Act 1998. As such, it may only be processed with explicit consent and care must be taken to ensure that the 8 data protection principles laid down in the Act are observed. The conditions for processing sensitive personal data must also be satisfied. The processing must be "necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment." It is probably premature to require health information before an employee has been offered a job in most cases. The Information Commissioner has just published a detailed Code of Practice on how to comply with the Act in the recruitment process which can be found at http://www.dataprotection.gov.uk.
  • As information about inherited diseases becomes increasingly available, some employers may be tempted to consider asking for personal genetic information about applicants or employees. The Human Genetics Commission has recently published a report covering the implications of the availability of genetic testing on employment. Although there is potential to predict susceptibility to work related conditions or sensitivity to certain chemicals, the Commission recommends that for the time being more direct methods of monitoring be used. In particular it recommends that employees should not be required to take a genetic test as a condition of an offer of employment.
  • Employers in the public sector should not forget that the provisions relating to privacy in the European Convention of Human Rights may be directly enforced against them and requesting unnecessarily detailed information about health will be a breach of those privacy rights
  • One of the reasons employers are keen to know about the health of prospective employees is to assess whether they have a poor record on sickness absence. One way used to establish this is to ask the employee’s referees about it. However, the information remains sensitive personal data, and the provisions of the Data Protection Act cannot be avoided in this way. Remember, too, that although references fall outside the rules allowing employees the right to see documents about them, this only applies to the employer giving the reference – the applicant is entitled to a copy of the reference from the employer to whom it is given, unless it has been made clear that the reference is confidential and that the giver does not consent to any disclosure.

Any request for information about a prospective employee’s health record must be handled most carefully. Key points to bear in mind are:

  • Establish a valid reason for obtaining the information.
  • Be transparent about what use you propose to make of the information.
  • Ask for no more information than is strictly necessary.
  • Obtain informed consent to the provision and use of the information.
  • Avoid using the information as a pre employment filter unless it can be justified in terms of the demands of the job.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.