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I've recently been asked to provide a personal reference for an ex-colleague, they've asked the standard questions, but these two stood out to me

Please tell us anything you know about the applicant’s conduct, reliability of health that might make them unsuitable for the job?

Has the applicant ever been bankrupt or insolvent?

As far as I am aware, you're not allowed to ask about a potential employee about health? How is this references agency skirting that law? Or are they blatantly violating it?

  • You're not going to hire someone with asthma to work in a mine. That's irresponsible. – Jack Jan 7 at 10:33
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    When you ask questions about law, remember to tell us your jurisdiction. Something which is legal in Pakistan might be illegal in Nicaragua. – Philipp Jan 7 at 10:37
  • This is in the UK! It asks about reliability not health issues that might prevent them doing the job. – Pez Cuckow Jan 7 at 10:41
  • Is the reference for an recruitment agency, or is the "agency" you mention working on behalf of a prospective employer in some sort of referencing capacity? – AdzzzUK Jan 7 at 11:42
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    @Jack Please be serious. If having a condition disqualifies someone from a job, you don't wait to find out about it from a random reference. – rath Jan 7 at 14:18
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They are almost definitely breaking the "EQUALITY ACT 2010"

From the govenment's guide on this legislation:

The general position is that it is unlawful for an employer to ask any job applicant about their health or disability unless and until the applicant has been offered a job.

This legislation was added to prevent discrimination against disability by asking health related questions prior to offering the position. There are caveats and questions which may be allowed or technically permissable, but in general - the safest position for any employer is to not ask or try to find out about the candidate's health prior to making a decision.

As such, you are absolutely right to see that reference request as a huge red-flag (and it's very much a sign of your good character you noticed the potential issue with it).

Note the above quote is from a guide for easier reading, and as such the wording assumes it is an applicant that recieves the discriminatory question directly. However, in the actual legal act itself, no distinction is made. I am confident that asking the question indirectly (via a reference) is equally illegal - even if the candidate is never aware it was asked.

https://www.legislation.gov.uk/ukpga/2010/15/section/60

(1)A person (A) to whom an application for work is made must not ask about the health of the applicant (B)—


The specific times you can ask about health prior to a job offer are:

  1. To establish whether the applicant can take part in an assessment to determine their suitability for the job

This does not apply in your case, as it needs to be a specific assessment they are being asked to complete. For example "Are you able to undertake an assessment to demonstrate you can climb scaffolding safely?". It cannot be a general health question.

  1. To determine whether any reasonable adjustments need to be made to enable a disabled person to participate in an assessment during the recruitment process.

This also does not apply in your case. Again, it must be a specific question to the applicant about whether they need adjustments made for a specific task. "We need you to perform a practice customer call as part of the interview; are there any health/disability accomodations you require for this?".

  1. To find out whether a job applicant would be able to undertake a function that is intrinsic to the job

An intrinsic function of a job is a function which, if it could not be performed, would mean that the job could not be carried out

Again, there has to be a specific reason for asking and the question must be specific to that reason. You cannot ask general health/disability questions.

  1. To monitor diversity among job applicants.

Monitoring information should be kept separate from application forms in order to minimise the risk that this information will influence the selection process

The employer writing to you, has made it abundantly clear they are using this information to make a hiring decision. As such, this does not apply. It also should not be collected from previous employers, but at the candidate's discretion.

  1. To support “positive action” in employment for disabled people.

Again, the employer specifically asked for health issues that would prevent the employee undertaking the job - this does not apply. Also, this should come from the candidate themself, and not a previous employer.

  1. If there is an occupational requirement for the person to be disabled.

Very clearly, this is not applicable to your request.


Although this hasn't impacted you directly, you may wish to take this further with the Equality and Human Rights Commission:

If a person thinks that an employer has acted unlawfully by asking questions about health or disability that are not permitted, the person can complain to the Equality and Human Rights Commission, which has powers to take enforcement action against the employer. A person does not need to have a disability to complain to the Equality and Human Rights Commission in this situation.

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    I would hazard to say the spirit of that sentence extends to references. – Juha Untinen Jan 7 at 12:21
  • Thanks @JoeStrazzere I've added a reference to the Act itself, which makes no distinction on who was asked. I believe the guide is just worded with disabled applicants in mind; but I am confident it applies to asking indirectly (such as OPs situation). – Bilkokuya Jan 7 at 12:26
  • The answer seems to focus on the assumption that the reference is being sought prior to a job offer being made. In my experience, references are usually sought following a job offer (usually the job offer will be stated to be made "subject to satisfactory references", but it is an offer nevertheless). Are we sure an offer hasn't already been made? If an offer has been made, wouldn't this fall under the "unless and until the applicant has been offered a job" caveat, and therefore be allowed so long as the information isn't used in a discriminatory fashion? – delinear Jan 7 at 16:12
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    @delinear The layman's version is effectively; you cannot ask anything relating to health or disability until the candidate has been given a firm offer. Doing so during reference checking does not excuse the question being asked (in terms of legal obligations). There is also a precedent from the Employment Appeal Tribunal, upholding exactly this decision (that asking in the reference was discrimination): hilldickinson.com/insights/articles/… – Bilkokuya Jan 7 at 16:29
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    @Bilkokuya interesting, thanks for the clarification. – delinear Jan 8 at 9:28
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I'm often asked for references for former staff (UK based company), and have noticed an increase in people asking referees to give specific information - often on a standard form.

According to the gov.uk website, a reference "can be brief - such as job title, salary and when the worker was employed". If a brief reference was provided, the new employer would be acting unlawfully if they were to record this as no reference having been given.

Short answer - what the new employer might ask you to supply isn't really relevant. We tell new employers that we are happy to provide a reference (assuming we are), but that we do not use a form for this purpose. We'll then supply an e-mail or letter listing dates of employment, duties of the position, and (where appropriate) a brief personal statement - always positive - from the employee's line manager.

I know it's not, strictly speaking, the question you asked, but for us the legality (or otherwise) of the new employer's questions never comes up.

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    That is a great point. As a reference-provider, you should provide a "standard consistent set of information" and ignore "what you are asked" .. excellent point. – Fattie Jan 7 at 13:22

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