The law on discussing disability before a job has been offered: Information for employers and disabled students

Also in this guidance

• Adjustments Planner guidance: What the Planner is, who is disabled, and what adjustments are
• Adjustments Planner: Guidance for employers
• Adjustments Planner: Guidance for students with disabilities and long-term conditions

Introduction

The law can feel complex. Many disabled people do not think about the law too much in their daily lives, and it can feel strange when the law is mentioned when disabled people are just trying to do ‘normal’ everyday things – such as applying for a job – that everyone else does. The law, however, provides some helpful rights ensure disabled people are treated fairly. Some information on this page may seem technical, but we wanted to ensure both employers and disabled people have the same information as each other.

An important note on talking about disability at recruitment and the law

The Adjustments Planner encourages disabled students to have conversations with employers about the support they need when moving from education to employment. Employers must be careful though, because the Equality Act 2010 says employers must not ask candidates disability or health related questions before they have offered the person a job. This page outlines to both employers and students when the employers can and cannot ask a candidate about a disability and what that means for using the adjustments planner effectively and in a way that is legally compliant.

When to talk about a disability and adjustments

The Equality Act 2010 is the main part of UK law which protects disabled people from discrimination at work. If employers would like more information on this, you can view some guidance here at the Equality and Human Rights website. If disabled students and employees feel they have been treated unfairly, they can contact the Equality Advisory and Support Service (EASS) for free advice.

The purpose of this part of the Equality Act is to prevent employers from sifting candidates out of the recruitment process when they learn the candidates may have a disability or condition. This section of the Equality Act therefore gives seven clear exceptional circumstances of when employers can ask candidates disability and health related questions. They are as follows:

1. To find out if a candidate needs adjustments to complete the recruitment process. This information should be collected separately to other information collected from candidates during the application process.
2. To find out whether a candidate can carry out a core part of the job they are applying for. Examples include being medically fit enough to drive to apply for a job as a coach driver, or if going into military or legal enforcement jobs where a specific level of medical fitness or not needing to rely on daily medication is mandatory.
3. To find out if the candidate has a disability where having a disability is needed for the job. For example, if a Cerebral Palsy charity advertise a role for a counsellor or coach and they want that person to have experience of Cerebral Palsy themselves, they can ask the candidate during the recruitment process if they have Cerebral Palsy themselves.
4. To collect data about the diversity of candidates who have applied for the job. Employers should collect this information separately to the application form where the information is not kept next to a candidate’s named job application.
5. To take disability related positive action. This is when employers may have a specific initiative just for disabled people to take part in. For example, offering an interview to any disabled candidate who fulfils the main criteria of a job description, or if a job scheme is specifically just for disabled people to apply for. In these circumstances, employers can ask candidates if they have a disability. This is because having a disability is part of the eligibility criteria for that specific initiative.
6. Where sector specific legal requirements to ask disability and health related questions are in place. An example is if working in the merchant shipping industry which has specific regulations about managing health.
7. Where candidates need to be vetted for national security purposes.

In any other situation, employers must not ask a candidate anything about disability or their health prior to job offer.

What this means for employers

• Employers must not ask an applicant and candidate any questions about their disability or health before they have offered that person a job. This includes asking how they will do the job or adjustments they will need to do the job; only adjustments for the interview and assessment can be discussed prior to job offer. After a job has been offered to a successful candidate, conversations with that successful candidate can begin about how they will do the job and any adjustments they need to do that job.
• When students apply for and enter their first job, they may feel they have to answer any questions an employer asks them. Where asking about disability is permitted (under the reasons listed above), employers should explain what disability-related questions are for (and be clear which of the seven reasons above are applicable) and, where relevant, that applicants and candidates are under no obligation to answer them. This is because our research shows many graduates (48 per cent) told an employer about a disability purely because they were asked, and not because they necessarily wanted or were ready to.
• Students and candidates may send or discuss the Adjustments Planner with you during application or the interview without being aware of the legal restrictions employers have to work within at this stage of the recruitment process. If candidates do share their Planner with you at this stage, you must be clear about whether that is appropriate. If the job they are applying for does not lend to one of the above exemptions, you must:

• Thank candidates for sharing this information with you.
• Sensitively explain that for this part of the process you do not need to know this level of information and that you are currently instead focussed on making the interview and assessment as good an experience as possible by making adjustments.
• Explain that adjustments for during the job will be discussed with successful candidates at a later date.
• It is natural for disabled people to instinctively naturally mention their disability or their adjustment in everyday conversations, because these are part of their bodies and their everyday lives. During the application or interview, it is fine for the candidate to mention these, but you as the employer must be careful to ensure you do not probe or ask further questions about the candidate’s disability or adjustments they would need in the job at this stage. This may feel odd and slightly unnatural in a conversation, but it is the right thing to do in terms of the law.

What this means for disabled students and candidates

• If you send or discuss your Adjustments Planner with an employer before they have offered you a job, do not be offended or disheartened if they say they cannot discuss this with you at this stage of the recruitment process. This may feel strange – because talking about a disability and how you do things is part of who you are and your everyday life. The employer, however, is absolutely correct to focus just on making adjustments for the application and interview only: they are simply following what the law says. If an employer responds to you in this way, be encouraged by it, because it means they know the law that protects you and they are following it to treat you well.
• You may be asked if you have a disability or specific disability if the job you are applying for falls into one of the above seven listed exempt circumstances. Unless you need to undertake a medical, fitness, or health assessment as part of identifying if you are right for specific part of the job, an employer should not be asking you about the details of your disability.
• You can be honest with employers during interviews if you do something in a different way because of your disability – such as you bring your guide dog to work, or you use speech to text software. This can be natural because you are just talking about how you do things. Keep in mind though that the employer may not comment on these or ask you further questions about this during the application or interview, because the law says they must not do this. Don’t feel disengaged by this or as though the employer is not interested. They are just following the law. It is common for conversations about having a disability and needing adjustments to feel more natural after you have been offered a job, because this is when an employer can legally discuss making adjustments for you in the job and how you prefer to work.