Employers will be aware that they cannot ask a potential employee if they have any medical conditions when conducting the recruitment process. This is to ensure fairness in the process and that the candidate’s medical condition does not influence the decision to offer them the job or not.
However, once you have offered an individual a role, you can require them to complete a medical assessment or questionnaire.
It is of course important to note that if you dismiss a new employee or withdraw the offer of employment, once they disclose the health condition, you could be opening yourself up to a disability discrimination claim.
What is a long-term health condition?
A long-term health condition is defined as a condition that cannot at present be cured but can be controlled by medication and therapies. This means that the condition is likely to last more than 12 months and have an impact of the employee’s day to day life and is therefore likely to be classed as a disability under the Equality Act 2010.
So, what are the considerations if your new recruit has a long-term health condition…
Making an offer of employment conditional
It is not uncommon nowadays for an offer of employment to be conditional on certain checks being undertaken, for instance:
- The employer receiving satisfactory references;
- The employer receiving confirmation that the employee is entitled to work in the UK or has the appropriate approval; or
- The employer being satisfied the employee holds the necessary qualifications to undertake the role.
It is possible, depending on the role, to make an offer of employment conditional upon receipt of a satisfactory medical report or medical questionnaire. This may be required to ensure the new recruit is physically able to undertake the role or to ensure that the new recruit will be able to be added to the employer’s health insurance scheme.
If you consider that you may require a new employee to undertake such a medical report, then you will need to obtain the employee’s consent, as the request will involve you handling medical information which is classed as special category data under UK GDPR.
Further, if you are going to require a new employee to undertake an assessment, you must ensure that the health enquires are relevant to the role and to determine whether reasonable adjustments can be made.
The risk of seeking medical advice on aspects of a condition, which will not be relevant to the role could result in the new employee being able to claim disability discrimination. The same applies, if you fail to consider whether any reasonable adjustments could be made to enable the employee to undertake the role they were offered.
Whilst you can (in certain situations) make an offer of employment conditional upon a medical assessment, you need to be mindful that this will not necessarily protect you from a disability discrimination claim.
How should you approach matters?
Once you are aware that the new employee has a long-term medical condition, I recommend that you discuss matters with them informally. Ensure that the questions you ask relate solely to the impact the condition may have upon their ability to undertake the role.
The purpose of the meeting is to attempt to discuss and determine if there any reasonable adjustments which could be made to assist the employee. You could ask them if they had any adjustments in their previous role which assisted them, likewise you could ask them if they have tried any adjustments which did not work.
Throughout the conversation ensure the employee is aware that you are only trying to assist them in their new role and confirm that you are happy to discuss matters further whenever they consider it would be beneficial.
If you do this from the outset the employee is likely to feel much more comfortable discussing the condition with you which in turn will result in you being more informed, for instance, if the condition worsens or the employee is placed on different medication, they will feel more confident discussing this with you.
Withdrawing an offer of employment
If, following receipt of a medical report, it is clear that the employee is not capable of undertaking the role they were recruited for, and no reasonable adjustments can be made or suitable alternative roles to offer. You may be able to withdraw the offer of employment.
However, before taking this approach I would recommend you seek legal advice to ensure you have looked at all the alternatives. This is to minimise the risk of a claim for disability discrimination.
If the employee takes either short-frequent periods of absence or long periods, which are as a result of the health condition, then this absence should be disregarded when assessing an employee’s sickness record.
This being said, sickness absence can have a detrimental impact on any business and so it must be dealt with in line with your sickness absence management policy. It is, therefore, important to ensure this policy is up to date.
If this becomes an issue, then you may wish to consider obtaining an updated medical report, to enable you to determine if there are other reasonable adjustments which could be made. However, in my view, if you have regular check ins with the employee, you are likely to find they will feel more comfortable coming to you when issues arise. This means you will be able to try and resolve the problem before it results in an issue of long-term sickness.