Question:
Can an employer ask
about mental ill-health?
Answer: Yes and No – It’s a
question of timing
Understandably there is a lot of confusion and
fear about if and when an employer can seek information about job
applicants’ health and particularly any disabilities. Some of
the confusion stems from the change to the law in 2010.
The Equality Act 2010 started to be
implemented in October 2010. The Act brings together nine
separate pieces of legislation into one single Act simplifying the
law and strengthening it in important ways to help tackle
discrimination and inequality.
No questions about health or disability before an outright job
offer
Employers are not allowed to ask any job applicant about their
health or any disability until the person has been:
- offered a job either outright or on conditions, or
- included in a group of successful candidates to be offered a
job when a position becomes available, where more than one post is
being recruited to (for example, if an employer is opening a new
workplace or expects to have multiple vacancies for the same
role).
This includes asking such a question as part
of the application process or during an interview. Questions
relating to previous sickness absence are regarded as questions
that relate to health or disability.
This applies to everyone, disabled or not, with a history of
mental ill-health or not.
No-one else can ask these questions on the
employer’s behalf either. So an employer cannot refer an applicant
to an occupational health practitioner or ask applicants to fill in
a questionnaire provided by an occupational health practitioner
before the offer of a job is made (or before a prospective employee
has been included in a pool of successful applicants) except in
very limited circumstances. Please see the guides produced by
the Equality and Human Rights Commission for more details.
Yes to questions on health and disability once a job offer has
been made
An employer can ask questions once they have
made a job offer or included an applicant in a group of successful
candidates. At that stage, the employer could make sure that an
applicant’s health or disability would not prevent him/her from
doing the job. But the employer must also consider whether there
are reasonable adjustments that would enable the employee to do the
job.
The Government Equalities Office and also the
Equality and Human Rights Commission (EHRC) have produced short
guides for employers about the Equality Act 2010.
Links
to resources:
The
Equality and Human Rights Commission
The Equality and Human Rights Commission (EHRC) has produced a
series of guides on the Equality Act 2010:
Bite size’ guides, including one for employers, on the Equality Act
2010
Guidance for employers about their rights under the forthcoming
Equality Act 2010.
This guide is one of a series written by the
Equality and Human Rights Commission to explain what you must do to
meet the requirements of equality law. The section includes
information on the recruitment process such as job application
forms and cv, the shortlisting process, interviews and tests.
This document is called ‘What
equality law means for you as an employer: when
you recruit
someone to work for you’.
The EHRC website also includes links to further sources of
information and advice
Government Equalities Office has produced
short guides and links to
Frequently Asked Questions (FAQ)s:
The Disability section of the FAQs includes
information on the relationship between the Disability
Discrimination Act 1995 and the Equality Act 2010.
FAQs on health and disability related enquiries during
recruitment
One of the important changes for people with
mental ill-health is that the test of ‘disability’ has changed to
include ‘difficulty carrying out their day-to-day
activities’.
For example in the publication,
Equality Act 2010: what do I need to know? A summary guide
to your rights, July 2010, it shows how mental ill-health
can meet the ‘disability’ test
| You suffer from depression, so it’s
very hard for you to make decisions or even to get up in the
morning. You’re forgetful and you can’t plan ahead. Together, these
factors make it difficult for you to carry out day-to-day
activities. You’ve had several linked periods of depression over
the last two years and the effects of the depression are long-term.
So, for the purposes of the Equality Act, you’re defined as a
‘disabled person’. Before the Equality Act, you might not have been
able to get disability discrimination protection. |
|
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