This question is commonly asked on the legal helpline. Section 60 of the Equality Act 2010 (Equality Act) states that when an application is made for work, you must not ask about the candidate’s health before offering work or on a conditional basis where you later turn down the candidate based on the answers given.
Although if you make an enquiry about a person’s health, this will not automatically give rise to disability discrimination under the Equality Act as there are exceptions where questions can be asked before offering work:
- To assess if s/he needs adjustments to be made to attend interview (such as ramp access, auxiliary aid if the person is deaf)
- To assess whether s/he can carry out a function that is intrinsic to the role (e.g. you can ask, ‘do you have any health issues that will prevent you from operating a forklift?’)
- Monitoring diversity – but you must actively use the information to monitor diversity; it is not enough to collect the data and store it.
- Taking positive action based on a protected characteristic (e.g. women being encouraged to apply for roles in engineering and technology).
- Fill a role that requires a person to have a protected characteristic (e.g. a deaf person to work with other deaf people).
If none of the exceptions apply, health questions should not be asked prior to registering a candidate or offering employment. If there are any disclosed conditions, you must consider whether they could amount to a disability under the Equality Act and whether reasonable adjustments can be made. An automatic rejection of the candidate could open you up to a discrimination claim unless you can show that your decision can be objectively justified.
If you ask for information in circumstances which are not covered by the exceptions, there are two possible consequences:
- The Equality and Human Rights Commission has authority to investigate and take action; and
- If a candidate is unsuccessful after providing health information and pursues a disability discrimination claim in an Employment Tribunal, the burden of proof is reversed so you will have to prove that you did not discriminate against the candidate.
- Recruiters and employers have to be careful not to ask blanket health and disability questions before providing work finding services or offering a role to a candidate.