Pre-employment health questionnaires and the Equality Act: getting the process right

Our earlier article on pre-employment health checks dealt with section 60 of the Equality Act 2010 and the sequence it imposes. Select on merit, offer, then ask. This one picks up where that leaves off. Once a conditional offer has been made and the questionnaire can lawfully go out, what should it ask, who should see the answers, what does data protection law require, and what happens when a new starter discloses something? Those are the questions that decide whether a pre-employment process protects the organisation or quietly creates the risk it was meant to remove.

When a health questionnaire can be sent

Section 60 prohibits an employer from asking about an applicant's health before offering them work, or, where it is not yet in a position to offer, before placing them in a pool from which offers will be made. Disability is treated as an aspect of health, and the Government Equalities Office's guidance for employers is explicit that questions about previous sickness absence are health questions and must not be asked.

The section lifts once an offer is made, and it says in terms that an offer can be conditional. So the lawful shape is a conditional offer, then the questionnaire, then a fitness decision. Acas confirms that a job offer can be made conditional on, for example, references or a health check, and that a conditional offer can be withdrawn if its conditions are not met, whereas withdrawing an unconditional offer could be against the law.

Before an offer, the exceptions are narrow. An employer may ask what it needs to establish whether a candidate can take part in an assessment or needs adjustments for it, whether the candidate can carry out a function that is intrinsic to the work, and, on a separate anonymous form, monitoring information. The Act's explanatory notes give the example of a warehouse job requiring manual lifting, where the employer may ask about health to establish whether the applicant can do that function, with reasonable adjustments if required, but may ask nothing else until an offer is made.

What a good questionnaire asks

A pre-employment health questionnaire has one purpose. To establish whether the person is fit for the specific role they have been offered, and what adjustments would help them do it well. Everything in it should serve that purpose, and nothing else. The Information Commissioner's Office says an employer must not collect more health information than it really needs, must not collect it purely on the chance it may be useful in future, and that it is good practice for health professionals to design health questionnaires, which should then be interpreted by those qualified to draw meaningful conclusions from the answers.

In practice that means the questionnaire is built around the demands of the role rather than around a generic medical history. For an office role, the relevant questions concern conditions that affect sustained screen work, concentration, or attendance, and any adjustments the person already knows they need. For a role involving driving, lifting, shift work, working at height or exposure to hazards, the questions follow those demands, and the questionnaire may lead to a clinical review or examination. Every questionnaire should ask, in an open way, whether there is anything the person would like the employer to know about adjustments that would help them at work. The ICO's guidance on medical examinations suggests a questionnaire as a less intrusive alternative to examining everyone, and as a way of selecting the few who need a closer look.

What a questionnaire should not do is ask for a full medical history because the form has always asked for it, request details of family history, or put questions that have no bearing on the role. Each of those adds risk and adds nothing to the fitness decision.

Who should see the answers

This is where many otherwise careful processes go wrong. A completed health questionnaire is special category data under the UK GDPR, and the ICO's position is that, as far as possible, an occupational health adviser should hold the medical information about a worker and only tell the worker's manager the results of the health assessment. The ICO adds that, unless told otherwise, workers are entitled to assume that information they give to a doctor, nurse or other health professional will be treated in confidence and not passed to others.

So the questionnaire should go to occupational health, not to HR. The employer receives a fitness statement, which at Medwyn is issued within 72 hours of assessment, together with any recommended adjustments. It does not receive the answers, the diagnosis or the medication list. The ICO puts the principle simply. As an employer, your interest is mainly in knowing whether a worker is or will be fit to work; as far as possible, leave it to medical professionals to access and interpret detailed medical information for you.

Where the questionnaire is an in-house form that HR reads, the organisation is holding sensitive data it does not need, its managers are interpreting medical information they are not qualified to interpret, and any later decision about that employee is exposed to the argument that it was influenced by what HR saw.

The data protection basis

Health information needs both a lawful basis under Article 6 of the UK GDPR and a condition for processing special category data under Article 9. The ICO's employer guidance identifies the employment, social security and social protection condition as particularly relevant for employers, for example where they are ensuring the health, safety and welfare of workers. Relying on it means meeting the associated condition in Schedule 1 of the Data Protection Act 2018 and having an appropriate policy document in place.

Consent looks like the obvious condition, and the ICO cautions against relying on it. Because an employer is in a position of power, a candidate who has just accepted a conditional offer may feel they have no choice, and the ICO says that if the worker has no genuine choice over how their information is used, consent cannot be relied on. That is why the process runs on a documented legal basis and a policy, with the occupational health provider, which the ICO says is likely to be a controller in its own right, processing the clinical detail under its own professional obligations.

Two further points. The ICO says a data protection impact assessment should be carried out given the sensitive nature of workers' health information, and may be required. And retention has to be deliberate. Information from examinations or testing that is not relevant must be permanently deleted, health information that is kept must sit in an appropriate secure system with a recorded retention schedule, and the ICO's draft recruitment guidance says records for unsuccessful candidates should not be kept beyond the period in which a claim could be brought.

What to do when a new starter discloses a condition

A disclosure on a questionnaire is not a problem to be managed away. It is the point at which the employer acquires knowledge of a possible disability, and with it the duty to consider reasonable adjustments. Under Schedule 8 of the Act the duty applies once the employer knows, or could reasonably be expected to know, that the person has a disability and is likely to be placed at a substantial disadvantage. Once occupational health has reviewed the questionnaire and made a recommendation, the employer will usually be taken to know.

The Government Equalities Office's guidance on questions after a job offer sets out the limits on withdrawal. The guidance says a conditional offer can only be withdrawn if the medical shows that the person would not be able to do the job properly. The employer cannot rely on its own opinion about what someone with a particular condition can and cannot do; it needs medical evidence. And it cannot withdraw an offer on the supposition that because a disabled person had extensive sick leave in a previous job they are likely to repeat that pattern.

The lawful route, therefore, runs through advice and adjustments. Occupational health advises on fitness for the role and on what adjustments would enable the person to do it. The employer considers those adjustments seriously and records its reasoning. Where the candidate is, or may be, disabled, withdrawal is defensible only where no reasonable adjustment would enable the person to carry out the essential functions of the role and the clinical evidence supports that. Even then, remember that if a prohibited question was asked before the offer and the candidate is rejected, the Act shifts the burden onto the employer to show it did not discriminate.

Roles where the law or national guidance requires more

For some roles the questionnaire is the first step in a process that the law, or national guidance, requires. Employers must offer night workers a free health assessment before they start night work and at regular intervals afterwards, and the results may only be disclosed with the worker's written consent or as a bare statement of fitness. Drivers of large lorries and buses need a medical for their first Group 2 licence, and then at renewal every five years or at 45, whichever comes first, and annually from 65. Workers whose exposure to lead is, or is liable to be, significant must be under medical surveillance before their first exposure or within 14 working days of it; workers doing licensable asbestos work need a medical examination in the two years before exposure; and employees cannot be designated as classified radiation workers until a relevant doctor has certified them fit. Under Department of Health and UKHSA guidance, new healthcare workers should have health clearance for tuberculosis and be offered hepatitis B immunisation and bloodborne virus testing before clinical work, with additional mandatory checks for exposure-prone procedures, which our article on hepatitis B clearance covers. The questionnaire for these roles should be designed with those requirements in mind, so that the statutory assessment follows from it rather than being bolted on.

A process that holds up

Done in the right order and read by the right people, a pre-employment health questionnaire is one of the least intrusive and most useful things an employer can do for a new starter. If yours has grown into a medical history form that HR reads, or you are unsure which roles need more than a questionnaire, our pre-employment service can review the process and run it for you.

This article is general guidance for employers and is not individual medical or legal advice. If you are unsure how it applies to your organisation, contact our team.