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
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
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
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
The Government Equalities Office and also the
Equality and Human Rights Commission (EHRC) have produced short
guides for employers about the Equality Act 2010.
The Equality and Human Rights
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
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
This document is called
equality law means for you as an employer: when
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
information on the relationship between the Disability
Discrimination Act 1995 and the Equality Act 2010.
FAQs on health and disability related enquiries during
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
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.
Next to >>>
employees with a mental health problem
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