Job applicants and the question of health
A prospective employer’s obligations under Equality Act 2010 kick in before they are even an employer. This is because job applicants are protected from discrimination under Equality Act 2010. It is important that employers are aware of this and that recruitment practices are not in any way discriminatory.
One key area in this regard is the question of health. All employers, if given the option, would want to recruit a healthy employee. But asking questions about health can give rise to the risk of a disability discrimination claim.
The general position under the Equality Act 2010 is clear: prospective employers are not allowed to ask questions about an applicant’s health prior to making a job offer.
There are exceptions to this general rule. Employers are permitted to ask questions:
- to enable adjustments to be made to the interview and selection process itself; or
- to find out if the applicant can carry out an intrinsic part of the job. For example, if the role would involve working at height, you would be able to ask health questions which allowed you to ascertain whether the employee had any medical issues which might impact on their ability to work at height.
The best way to find out whether an applicant needs any adjustments to the interview process itself is to ask them. The Equality and Human Rights Commission suggests that the following wording should be included in recruitment materials: ‘Please contact us if you need the application form in a different format or if you need any adjustments for the interview’. A failure to do this, or to give due consideration to the issue if the employee raises one, risks a claim for failure to make reasonable adjustments.
This was illustrated in the case of Mallon v AECOM. Mr Mallon had dyspraxia. He applied for a role with AECOM for which he was required to fill out a paper application. He asked if he could complete the form orally owing to his condition. AECOM, on notice of his dyspraxia, told him to put his difficulties in an email. It said that it could assist Mr Mallon, but that completion of the form was required. The employment tribunal concluded that a reasonable employer, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form, would have telephoned that individual to ask for more details about his difficulties. The employment tribunal gave the opinion that, given the applicant’s difficulties with written communication, it was not reasonable to expect him to explain these matters in an email.
Once you have made a job offer, you are able to ask health questions. You are even able to make the job offer conditional on completion of a health assessment. However, you need to be very careful if, on receipt of medical information, you decide to withdraw the job offer. If a health issue comes to light at this stage, before making any knee-jerk decision, you should consider whether the health issue impacts on the person’s ability to do their role. You should also explore and document any adjustments which might be able to be made to the role to enable them to do it. The duty to make reasonable adjustments is in play and, if you withdraw the offer without first investigating whether any adjustments are available, you are at high risk of a claim being made against you.
Biometric monitoring in the workplace: A high-risk area for employers
Biometric monitoring - tools that identify individuals through fingerprints, facial recognition, voice patterns or other biological traits - is becoming increasingly common in workplaces seeking efficient access control, timekeeping, or security. But the legal and ethical risks associated with biometrics are substantial. These technologies collect special category data, meaning they trigger the highest level of protection under the UK GDPR.
Employers considering biometrics need to understand both the benefits and the pitfalls before rolling out any system.
Why Biometrics are high-risk
Biometric data is inherently sensitive. It can reveal personal attributes, is unique to the individual, and cannot easily be changed if compromised. That’s why the GDPR treats biometrics as special category data, requiring employers to meet:
- a lawful basis for processing, and
- a separate special category condition, such as health and safety, substantial public interest, or explicit consent.
Because biometrics are generally not essential for most roles, it is often difficult to rely on any basis other than explicit consent — and consent is notoriously problematic in employment due to the imbalance of power.
The Serco case: A cautionary tale
The ICO’s enforcement action against Serco earlier this year is a stark warning. Serco implemented facial recognition and fingerprint scanning to monitor staff attendance without:
- properly assessing privacy risks;
- demonstrating that biometrics were necessary; or
- considering alternatives, such as ID cards.
The ICO ordered Serco to stop using the technology, delete most of the biometric data, and comply within three months — a strong signal that biometric monitoring will face serious scrutiny. Justifying biometric monitoring Where biometric data is genuinely necessary - such as in high-security environments - employers must:
- conduct a Data Protection Impact Assessment (DPIA)
- assess whether a less intrusive option exists
- explain clearly why biometrics are required
- ensure staff have a genuine alternative option (e.g. a key card)
- restrict access to data and store it securely
- keep retention periods short and well-defined
Transparency and choice are essential
Because biometrics are deeply personal, employees must understand what is being collected and why. If employers cannot offer staff a meaningful choice over whether to participate - without detriment - biometrics will rarely be lawful.
Proceed with caution
Biometric monitoring is an area where technological convenience often clashes with legal risk. Employers should proceed carefully, documenting every decision, prioritising alternatives, and remembering that “high-tech” doesn’t automatically equal “lawful”.
How we can help
Please contact Sally Morris, Head of Employment, at sally.morris@mfgsolicitors.com or call on 01905 610410.
To read part 3, please click here.