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Asking for information about disability
In many countries – including the UK – it is unlawful to ask some questions about a person’s disability during recruitment.
The Equality Act 2010 in the UK makes it unlawful for employers to ask applicants general questions about their health, medical history, or disability prior to making an offer of employment – though there are some exemptions to this (see ‘What is still lawful?‘ below). This includes asking applicants to complete a standardised medical questionnaire that asks questions about past and current illnesses, injuries, treatment or medication.
Employers who ask questions about past sickness absence on application forms or in references from previous employers requested prior to a job offer may also be acting unlawfully, as this could be interpreted as asking questions about health or disability.
What is still lawful?
As noted above, it can be lawful for employers to ask questions about an applicant’s or a candidate’s health and disability in some specific circumstances. These are:
- To establish whether the applicant can take part in an assessment to determine their suitability for the job.
Employers can ask employees if they are able to have an assessment to show that they can perform the necessary functions of the role they are applying for.
- To determine whether any reasonable adjustments need to be made to enable a disabled person to participate in an assessment during the recruitment process.
Employers can ask applicants if they need any reasonable adjustments for the application process or interview.
Note that employers cannot ask candidates questions about adjustments they would need in post until after they have made a job offer.
- To find out whether a job applicant would be able to undertake a function that is intrinsic to the job.
Employers can ask applicants how they will carry out any intrinsic elements of the job and if there are any limitations on them carrying out such duties. For example, employers can ask applicants for a job as a driver if there are any health restrictions on their ability to drive.
- To monitor diversity among job applicants.
Employers can ask questions about disability for equal opportunities monitoring purposes and in order to take positive action, for example, guaranteeing an interview to disabled applicants who meet the essential criteria for a post.
- To support ‘positive action’ in employment for disabled people.
Employers can ask applicants and candidates if they are disabled as part of a programme of ‘positive action’ to improve the representation of disabled people in the workforce.
For more information about positive action, see our resource ‘FAQs – Positive and proactive recruitment’.
- If there is an occupational requirement for the person to be disabled.
Employers can ask questions about health and disability if it is necessary for a person to have a specific condition or disability in order to perform the job.
For example, if someone applies for a role as a mental health counsellor, it can be lawful to confirm that candidates have personal experience of living with a mental health condition.
- To vet a candidate for national security purposes.
Employers are also allowed to ask questions about health and disability if this is needed to vet candidates for national security purposes.
The Equality and Human Rights Commission (EHRC) can take enforcement action against any employer who does ask questions about health or disability prior to the offer of a job.
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