Careful recruitment

Duncan Bain discusses the impact that the Equality Act 2010 is having on school recruitment

The single biggest effect on schools that the Equality Act 2010 will have is on the way that schools conduct recruitment. These changes are intended to prevent disability discrimination but will have significant implications for the education sector where concerns over the impact of high levels of sick leave are clearly legitimate.

In most situations, schools are no longer permitted to question an applicant about their health prior to the offer of a job. You should therefore amend application forms to remove any health questions and take steps to ensure that interview panels are aware that health questions should not be asked during interviews.

There are a few exceptions to this rule, but the most significant is that health-related questions are permitted to establish whether the job applicant will be able to carry out a function that is intrinsic to the work concerned. This exception will apply rarely in the context of teaching and is more typically relevant in manual occupations where particular physical capabilities (eg an ability to climb ladders) are a core aspect of the role. It is unlikely that a PE teacher will be caught by this exception as it is not designed to apply to a high level of general fitness, and must relate to a specific function of the role.

Set conditions
Once a job offer has been made (which usually should be conditional on satisfactory references, right to work in the UK and health checks), then the above restrictions are removed and you may ask whatever health questions you wish.

As an employer, you can choose to do this by, for example, asking the candidate to complete a medical questionnaire, asking for sickness absence information from their previous employer, and/or by referring them to an occupational health adviser for a health assessment.

Should such enquiries establish that there is a problem with the candidate’s health, then you must act with great care before you consider withdrawing the offer. This is because, where the candidate’s medical condition satisfies the definition of a disability, three key obligations will be triggered:
(1) a duty on the school to make reasonable adjustments to help the candidate perform the role;
(2) a duty on the school not to treat the candidate detrimentally because of something arising from their illness (eg a history of earlier sickness absence) unless it has an objective justification for doing so; and
(3) a duty not to rely on prejudice or discriminatory assumptions when considering the likely effect of the candidate’s disability.

Should you fail in any of these respects, then a rejected candidate will be able to bring a claim to an Employment Tribunal for compensation for the earnings s/he will have lost from the withdrawal of the job offer.

It is important to develop sensible processes to overcome such risks when a candidate’s health is a cause for concern. For example, it will be important to allow the candidate an opportunity to respond – ideally in a meeting – to any health-related concerns that you may have before a decision to withdraw a job offer is made. As part of this, or as part of a health questionnaire, you should seek to understand whether the candidate considers themselves to be disabled and believes that any reasonable adjustments can be made to help them perform the role. It may also be necessary to obtain further specific medical advice from an occupational health adviser or other doctor.

If such steps are taken, and you have good evidence that the candidate will find it difficult to perform the role, or that they present a significantly higher than normal risk of sickness absence, then you will be in a strong position to withdraw the job offer without legal challenge, having demonstrated that you have not acted without justification nor relied upon discriminatory assumptions.

Prevention is definitely better than cure when recuiting in 2011. The Equality Act 2010 has significant impact on school recruitment – make sure that you get it right.

Duncan Bain is an employment lawyer and senior associate with Morgan Cole. Duncan can be contacted on 01865 262600 or visit www.morgan-cole.com. 

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