It is contrary to the Equality Act 2010 for employers to ask job applicants questions about their health before offering them employment. The reasoning for this is to avoid disability discrimination (whether consciously or unconsciously) in the recruitment process.
Employers are however permitted (and it is recommended) to request an applicant complete a medical questionnaire or in some job roles, obtain a medical report once they have been offered employment.
But what happens if, after offering employment the employee discloses a medical condition or disability?
Firstly you should have a confidential discussion with the individual to ascertain more information and make an assessment as to the next steps needed. Do not be afraid to say, ‘I note that you have disclosed that you have anxiety and depression, to help you and understand more about your condition I would like to have a confidential discussion with you.’ It is important that you have a full understanding of the extent of an employee’s condition for health and safety reasons but also to ensure you can provide support where needed.
Depending on the role, if the offer was conditional upon receipt of a satisfactory medical report or a medical questionnaire there may be scope to withdraw the offer if the applicant would be physically unable to perform the role.
However, before seeking to withdraw an offer you should first look to see if any adjustments can be made to assist the employee with performing the role in order to fulfil your obligation to make reasonable adjustments for a disabled employee.
Briefly mentioned above, if an employee reveals that they have health issues which could amount to a disability then the first thing do is to obtain more information about the employee’s condition and then look to see if any adjustments can be made to help the employee perform the role.
We would recommend that you discuss with the employee the health issues and how it may impact their performance of the role and discuss ways to alleviate or reduce any impact.
Reasonable adjustments of course depend on the individual and may vary depending on their condition. Some examples of what reasonable adjustments can include are:
- Different start and finish times.
- Different shift patterns throughout the week.
- Regular rest breaks throughout the day.
- Time off to attend medical appointments.
- Provision of special equipment to help perform the role.
Depending on the nature of their condition and information available from the employee, you may wish to consider obtaining an occupational health assessment to help determine whether any adjustments can be made to help the employee perform the role or to confirm that no adjustments can be made.
Undertake a risk assessment.
Even if you establish that the employee does not have a disability or that there are no reasonable adjustments required for their disability, if an employee has disclosed a medical condition, you should always give consideration to whether an individual risk assessment is needed.
The purpose of a risk assessment is to identify any risks that are specific to the individual which may arise in their job role and to measure the risk, and if necessary, put steps in place to mitigate the risk.
Points to consider going forward.
If you are recruiting for a role that requires the employee to be able to carry out a function that is intrinsic to the role then you may be able to ask health related questions prior to making an offer but the ability to perform the function must be absolutely fundamental to the role.
Any health-related information obtained relating to an applicant or employee is classified as sensitive data for the purposes of the UK General Data Protection Regulation (UK GDPR) and so will amount to the processing of special category data. Although you can process special category data as your purpose would be for performing or exercising employment law obligations in light of health and safety, we would recommend that you obtain the necessary consents to comply with the UK GDPR. This is usually in the form of a privacy notice which you are required to issue to employees in any event.