When an offer of employment to an applicant to work within your household has been made subject to a health check, what are the legal implications, both for the applicant and the employer?
Should the applicant refuse to have such a health check, where does the employer stand?
The advice we have received is that if the offer is conditional upon the health check and the applicant refuses, the condition is not fulfilled and therefore it will be difficult for the applicant to argue that a binding contract has been formed. The offer can be withdrawn.
However, if the applicant displays an obvious disability and this was a contributing factor to withdrawing the offer, then the employer runs the risk of a claim on the basis of disability discrimination.
Job offers may be made conditional on satisfactory responses to pre-employment disability or health enquiries or satisfactory health checks. However, employers must ensure they do not discriminate against a disabled job applicant on the basis of any such response. So you cannot reject an applicant purely on the grounds that a health check reveals that they have a disability. Employers should also consider at the same time whether there are reasonable adjustments that could be made in the working environment in relation to any disability disclosed by the enquiries or checks.
Where health enquiries are made after an applicant has been conditionally offered a job subject to such enquiries, employers must not use the outcome of the enquiries to discriminate against the person to whom a job offer has been made. An employer can avoid discriminating against applicants to whom they have offered jobs subject to satisfactory health checks by ensuring that any health enquiries are relevant to the job in question and that reasonable adjustments are made for disabled applicants.
Under the Equality Act 2010, it is unlawful for an employer to ask any job applicant about their disability or health until the applicant has been offered a job (whether on a conditional or unconditional basis) or has been included in a pool of successful candidates to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. There are some limited exceptions to this (e.g. reasonable adjustments needed for the recruitment process, monitoring purposes, where it relates to their ability to carry out a function that is intrinsic to the role).
This is potentially a complex area and the above is just a general guide. As always, we recommend seeking relevant legal advice before taking any action in this area.