Last reviewed: 22 June 2022
- What you can and can’t ask before making a job offer is governed by the Equality Act 2010 in the UK.
- Generally, you can’t ask any questions about health or disability unless it relates to a candidate’s ability to perform the core functions of the role.
- For tailored advice, contact our Advice Service.
What is the law?
The Equality Act 2010 makes it unlawful for employers to ask applicants general questions about their health, medical history or disability prior to making an offer of employment. This includes asking applicants to complete a standardised medical questionnaire that asks questions about past and current illnesses, injuries, treatment, or medication – for example anti-depressants.
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?
Employers can ask applicants if they need any reasonable adjustments for the application process or interview.
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.
Employers can ask successful candidates health-related questions so that any necessary reasonable adjustments can be made after a job offer has been made.
Employers can ask questions about disability for equal opportunities monitoring purposes and in order to take positive action, for example, an ‘offer an interview’ scheme under which interviews are guaranteed to disabled applicants who meet the essential criteria for a post.
For more information about what employers can ask about disability during recruitment, see our resource ‘Asking or information about disability during recruitment’.
What are the exceptions?
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.
Enforcement
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. Employers found guilty of discrimination will be required to draw up an action plan, overseen by the EHRC. Failure to comply could result in a £5,000 fine.
In addition, a job applicant who believes that they suffered a detriment for example by not being appointed because of questions they were asked about their health or medical history may use the questions asked as evidence of disability discrimination in a tribunal claim. It will then be for the employer to prove that the answers to these questions did not influence the decision not to appoint the applicant.
Read next
- Can I ask candidates questions about disability?
- Ringfencing – Positive and proactive action
- Employment agencies and the law
© This resource and the information therein are subject to copyright and remain the property of the Business Disability Forum. It is for reference only and must not be copied or distributed without prior permission.
If you require this resource in a different format, contact enquiries@businessdisabilityforum.org.uk.