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
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
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 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.
The Equality and Human Rights
The Equality and Human Rights
Commission (EHRC) has produced a series of guides on the Equality
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 tests.
This document is called ‘What
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 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
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
|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