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23rd April 2018

Ask the Expert – Absence history and recruitment

Question:

“We are currently recruiting for a post in our admin team and have invited candidates to interview. Our normal practice is to request references in advance of interviews, and as part of our reference request we ask for their absence history. We have received a reference for one of the candidates and have concerns in relation to their absences. Can we (a) ask them about it at their interview and (b) refuse to employ them on that basis if we don’t get a satisfactory answer?”

Answer:

Asking about and reacting to health information during recruitment is a tricky area. Recruitment is an expensive and labour-intensive process and there is a desire to get it right. There are however a number of issues that can create difficulties for employers.

The first part of your question is relatively straightforward but the second carries a greater element of risk.

In basic terms, the answer to (a) is simple: an employer is prohibited (by the Equality Act) from asking job applicants health questions before they are making, or have made, a job offer. Given that you are currently at the interview stage, this prohibition would likely apply to you.

There are limited exceptions to this rule. For example, you can ask whether the candidate needs any adjustments to allow them to attend an interview, and you can ask questions to determine whether they are able to carry out the essential parts of the role. Another common exception is the use of equal opportunities monitoring forms, which might be used (for example) to monitor how many disabled people are applying for roles.

However, it is unlikely that general questions on absence history would fall within these exceptions. As such, we would advise against asking questions on absence history at interview.

An employer is allowed to ask questions at the job offer stage, and many employers will do so, often through the use of a health questionnaire or similar document. Therefore, if the applicant in question is the preferred candidate after interview, you may be able to ask health questions when the offer paperwork is being drawn up. Having said that, caution should still be exercised when asking for this information at the offer stage, particularly in relation to how you respond to it.

The Equality and Human Rights Commission Code on the subject recommends that any questions asked at the offer stage should be relevant to the job. As such, it may be going too far to ask either general health questions or for the candidate’s complete medical history. It’s also wise to bear in mind that data protection legislation requires you to obtain and hold only information that is necessary.

In relation to (b), a significant risk could arise if you decide not to employ the person based on their absence history if the absences were related to a disability. Doing so could lead to one or more successful claims of disability discrimination.

If it becomes clear that there is a medical condition that could fall within the definition of a disability, a safer approach would be to seek further advice from a medical professional, perhaps through an occupational health referral, before making any final recruitment decisions.

Doing so may allow you to determine whether reasonable adjustments could be made to accommodate the candidate, which of course you would be under a duty to consider in those circumstances. A failure to make such adjustments could in itself lead to a discrimination claim.

Even then, decisions based purely on absence / disability alone are never without risk.

With the above in mind, you may wish to reconsider asking for absence information when requesting references. It opens up risk from the outset, as even a candidate rejected at the shortlist stage could try to claim that they weren’t invited to interview based on their medical history, even where the decision was based on a lack of experience or qualifications.

The burden of proving fair treatment can shift easily to the employer, but if you haven’t asked about their medical history you make it difficult for the candidate to claim that that was the reason for their rejection, either at shortlist or later. Sometimes, the less you know the better.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

23rd April 2018