If you have a disability, applying for a job can be a worrying time. This is especially so where you have a mental health condition given many people might jump to their own conclusions as to how well you will be able to do the job and for how often you will be off sick. You may also face disability discrimination. But do you need to tell your employer about your health? If you don’t, what can they ask you?
We look at the common issues facing disabled job applicants in this situation and how the law protects them.
I’ve applied for a new job. Do I have to tell the employer about my disability?
The simple answer is “no”. You do not have to tell your employer about your disability.
However, you might need to do so if you need reasonable adjustments making so that you can take part in the recruitment process. The employer is under a duty to make reasonable adjustments for disabled applicants (see our Disability Discrimination Legal Guide)
Adam uses a wheelchair. He will need to ensure that he can access the room in which the interview is to be held.
Kiri has a sight impairment. She needs to do a written test as part of a job interview and needs the documents to be written in large print. She will need to tell the employer this.
I’ve recently suffered from clinical depression which meant I needed to take some time off work. I’m now applying for a new job. Can they ask me about my sickness record?
The law says employers (or future employers) must not ask job applicants questions about their health before offering the applicant a job or shortlisting possible candidates (where the employer chooses a small group of individuals from which it will then decide to who to offer the job to).
“Health” has a wide meaning. It covers whether you have a disability as well as questions about your sickness record.
Therefore, the employer, generally, should not ask questions about your sickness record.
Does this apply to every part of the recruitment process?
Yes. The employer should not ask any health-related questions as part of their recruitment process whether that be:
in an application form;
during a job interview;
informally, such as when being shown around the workplace; or
as part of a reference request to a previous or the current employer.
The employer is using a recruitment agent to find job applicants. Can the agent ask me health questions on behalf of the employer?
No. The employer cannot ask someone else to ask health questions on its behalf.
At what point can the employer ask questions about my health?
The employer can only ask questions about your health once they have made the decision to offer you the job.
This means that the employer can make you a “conditional offer” subject to you having a health assessment to check you can do the job. This means that if the health assessment suggests you cannot do the job, your employer can withdraw their offer.
Elsa is offered a job in a warehouse.
The job requires Elsa to lift large containers.
Elsa has hypo-mobile joints which mean her shoulders, wrists and knees can dislocate easily.
Elsa’s job offer is conditional on her having a health assessment and being declared fit enough to do the job.
Elsa has the health assessment. The occupational therapists says Elsa is not fit enough to do the job as the heavy lifting would put her at a frequent and high risk of injury given her health condition.
The employer can withdraw the job offer.
Is this always the case or are there any exceptions that allow the employer to ask health-related questions?
There are some exceptions.
Reasonable adjustments (for disabled applicants)
The employer is allowed to ask health-related questions to check whether you need any reasonable adjustments making regarding the recruitment process, whether that be to the interview (such as ensuring you can access the room or having an appropriate seat or lighting, for example) or any assessment you have to do (such as being allowed more time if you have a physical or mental health condition that means it would take you longer than others).
Carry out the job
An employer can ask you questions to see if you can carry out an important part of the job. For instance, if you apply for a job that involves heavy lifting as an essential part of the job, your employer can ask whether you can do so. But the focus should be on being able to do that important part of the job and the employer also needs to consider whether you would be able to do the job if reasonable adjustments were made if you have a disability.
Going back to Elsa, as heavy lifting was an important part of the job, the employer could have asked Elsa whether she was able to lift heavy objects before offering her the job.
As Elsa would not be able to do this, the employer should consider whether any reasonable adjustments could be made to help Elsa do the job.
Equal opportunities monitoring
Many employers will send out equal opportunities monitoring forms as part of their recruitment process. These forms ask questions about such things as your gender, age, race, religion and disability so that the employer can assess whether it is attracting job applicants from all parts of society. Employers are allowed to send out the forms, but the forms should not be used as part of the selection process.
Where the role requires a certain disability
If the role needs a person to have a particular disability, such as a support worker needing to have the particular disability of those to be supported, then the employer can check that the applicant does have that disability.
A charity for people with cystic fibrosis (a lung condition) wants to hire an advisor with personal experience of the condition to support people with cystic fibrosis. The employer is allowed to ask candidates if they have cystic fibrosis.
What happens if the employer does ask a health-related question when they are not allowed to?
you have a disability
are applying for a job (whether with the same employer or a new employer);
are asked a health-related question as part of the recruitment process;
the employer does not offer you the job; and
you believe the reason why was due to your answer to the health-related question
You can bring a direct disability discrimination claim and it will be for the employer to show that the reason they did not offer you the job was not because of your disability. See our Disability Discrimination Legal Guide to find out more on the different types of disability discrimination claims.
Erika and Ali both apply for the same job. Erika has Type 1 diabetes which has led to some sickness absence.
The employer has used an old application form which asks how many days off sick the applicant has taken in the last 12 months. Erika answers the question and has more sickness than Ali.
Erika does not get the job and it is given to Ali.
Erika believes this is due to her sickness absence and brings a direct disability discrimination claim.
The employer will either need to show that very good attendance is a very important part of the job (to justify asking the health-related question) or that Erika did not get the job for some other reason. For instance, showing Ali was better qualified or had more experience.
With an honest and ethical approach to law, at Truth Legal you will have access to our specialist team of lawyers to help you with all your employment law matters. Our Head of Employment Law is Navya Shekhar, an employment law solicitor with over 10 years’ experience.
If you believe you have been discriminated against and need help with a disability discrimination claim, call us on 01423 788538 or contact us here.
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