Commentary on Sections Part 5: Work Chapter 1: Employment, etc. Effect
197.Except in the situations specified in this section, an employer must not ask about a job applicant’s health until that person has been either offered a job (on a conditional or unconditional basis) or been included in a pool of successful candidates to be offered a job when a suitable position arises. The specified situations where health-related enquiries can be made are for the purposes of:
	finding out whether a job applicant would be able to participate in an assessment to test his or her suitability for the work;
	making reasonable adjustments to enable the disabled person to participate in the recruitment process;
	finding out whether a job applicant would be able to undertake a function that is intrinsic to the job, with reasonable adjustments in place as required;
	monitoring diversity in applications for jobs;
	supporting positive action in employment for disabled people; and
	enabling an employer to identify suitable candidates for a job where there is an occupational requirement for the person to be disabled.
198.The section also allows questions to be asked where they are needed in the context of national security vetting.
199.Where an employer makes a health or disability-related enquiry which falls outside the specified situations, he or she would be acting unlawfully under the Equality Act 2006. Together with Schedule 26, this section gives the Equality and Human Rights Commission (EHRC) an enforcement role. (Section 120(8) ensures that only the EHRC can enforce a breach of this provision.). This means, for example, that the EHRC would be able to conduct an investigation if there was evidence that a large employer might be routinely asking prohibited questions when recruiting.
200.Where the employer asks a question not allowed by this section and rejects the applicant, if the applicant then makes a claim to the employment tribunal for direct disability discrimination, it will be for the employer to show that it had not discriminated against the candidate.
201.As well as applying to recruitment to employment, the section also applies to the other areas covered by Part 5 of the Act, such as contract work, business partnerships, office-holders, barristers and advocates.