Is it unlawful discrimination to ask questions about health or disability during recruitment?
Section 60 of the Equality Act 2010 restricts the circumstances in which an employer can ask questions about a candidate's health before offering them a job. Employers may ask health-related questions for the purposes of:
- establishing whether the candidate will be able to undergo an assessment (which would include an interview), or whether the employer will be required to make reasonable adjustments to the assessment process;
- establishing whether they will be able to carry out a function that is intrinsic to the work;
- diversity monitoring;
- taking positive action under s.158 of the Act; or
- establishing whether they have a disability, where having that disability is an occupational requirement for the role.
If an employer asks health-related questions that are not covered by these exceptions, and then fails to appoint a disabled candidate, it would have to show that it had other reasons for not appointing the candidate that were not related to their disability.
In other words, there will be a presumption of disability discrimination if the employer asks health-related questions before making a job offer, which the employer will have to rebut if an unsuccessful candidate brings a claim of disability discrimination. Defending a claim is likely to be difficult and time consuming. Therefore, it is advisable for employers not to ask health-related questions in most cases.
In addition, the Equality and Human Rights Commission can take direct enforcement action against employers that ask pre-employment health questions.
