Last reviewed: 22 June 2022
- Under the Equality Act 2010, it is generally unlawful to ask questions about health and disability before a job offer is made.
- There are some exceptions – for example, you can ask candidates if they would be able to perform a task that is intrinsic to the job, and ask about adjustments to the recruitment process.
- You can also ask questions about health and disability for data monitoring purposes – as long as this information is kept separate from the rest of their application.
- This area is complex – BDF Members can contact our Advice Service for tailored advice.
What is does the law say?
The Equality Act 2010 in the UK makes it unlawful for employers to ask applicants general questions about their health, medical history, or disability before making an offer of employment – though there are some exemptions to this (see 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 be acting unlawfully, as this could be interpreted as asking questions about health or disability.
What are employers allowed to ask about health and disability?
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.
- To determine whether any reasonable adjustments need to be made after they have been appointed but only after a job offer has been made.
Employers can also ask successful candidates health- or disability-related questions so that any necessary reasonable adjustments can be made after a job offer has been made.
- 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.
For more information about data monitoring, see the resource ‘Data monitoring and disability’ in this Toolkit.
- 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 at a disability-specific charity, it can be lawful to confirm that candidates have personal experience of living with that disability.
- 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.
What should I do if an applicant or candidate tells me about a disability?
Before making a job offer
While you shouldn’t ask applicants and candidates questions about health and disability before making a job offer, there may be occasions where they tell you about a disability or health condition unprompted. For example:
- If they are visibly disabled – for example, they are blind and walk with a cane – and they say something like “you may be imagining how I’d do this job with my disability”.
- Their work history shows that they have worked in disability-specific role before – for example, they volunteered for a mental health charity, and explain that this was because they experienced mental ill-health.
- If they need adjustments to the recruitment process and they begin to explain how their disability affects them.
Remember, it is usually unlawful to ask questions about health and disability before making a job offer. Therefore, in situations such as these, you must not ask any questions about their health or disability or invite the candidate to provide any more information.
It is best to move the conversation along – and be honest about why. Say something like:
“Thank you for sharing but we can’t legally ask you any questions about health or disability before making a job offer. If we do make you a job offer we’d love to talk to you more then about how we can support you in the role.”
You want to be positive and welcoming – whilst also following your legal responsibility not to ask any questions about health and disability.
After a job offer
You want applicants and candidates to be open with you about health and disability after making a job offer! You are now allowed to ask questions about health and disability so you can put in place any necessary workplace adjustments.
At this stage, the information should not come unprompted, as you should be keeping in touch regularly with successful candidates to ensure workplace adjustments can be put in place as soon as possible.
For more information about staying in touch after the job offer, see our resource ‘Communicating with candidates post-job offer’.
Read next
- Legal Ease – Reasonable adjustments and employment
- Data monitoring and disability
- FAQs – Positive and proactive recruitment
- Communicating with candidates post-job offer
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