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The Royal College of Psychiatrists Improving the lives of people with mental illness

 

Questions about health or disability


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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Supporting employees with a mental health problem

 

Please note that we are unable to offer advice on individual cases. Please see our FAQ for advice on getting help.

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