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

 

Applying for a job


Question Can an employer ask about my mental ill-health

Answer:    Yes and No – It’s a question of timing

There is a lot of confusion about if and when an employer can seek information about a job applicant's health, and particularly any disabilities.  

The Equality Act 2010 started to be implemented in October 2010.  The Act brings together nine separate pieces of legislation into one single Act. This Act simplifies and strengthens the law in important ways to help tackle discrimination and inequality.

No questions about health or disability before an outright job offer

 

An employer cannot legally ask you about your health or any disability until you have 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).

They cannot ask questions about your health as part of the application process, or during an interview.  They cannot ask questions about previous sick leave because these 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. So an employer cannot ask you to see an occupational health practitioner, or ask you to fill in a questionnaire provided by an occupational health practitioner, before they have offered you a job  (or before you have been included in a pool of successful applicants) except in very limited circumstances. 

Yes to questions on health and disability once a job offer has been made

An employer can ask about your health once they have offered you a job, or included you in a group of successful candidates. At this stage, the employer can make sure that your health or disability will not prevent you from doing the job. But the employer must also consider whether there are reasonable adjustments that would allow you to do the job.

 

The Government Equalities Office and also the Equality and Human Rights Commission (EHRC) have produced short guides for workers about the Equality Act 2010.

Links to resources:


Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) has produced a series of guides on the Equality Act 2010.  The section for workers includes information on the recruitment process such as job application forms and cv, the shortlisting process, interviews and tests. 

This document is called Your rights to equality when you apply for a job’ and is a comprehensive guide for employees.

 

The EHRC website also includes links to further sources of information and advices

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. 

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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Should I tell a prospective employer about my mental ill-health?

 

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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