Equality and Human Rights Commission Code of Practice (Part 2)

09 Mar 2012

It is unlawful for an employer to ask a job applicant about his or her health or disability until a job offer has been made.  This can be a conditional or unconditional job offer.

This means there cannot be any questions on application forms or in interviews about previous sickness records.

This provision is designed to ensure that disabled applicants are judged objectively on their ability to do the job they have applied for.  There are some exceptions to this general rule.  The most relevant are: 

  • Reasonable adjustments needed for the recruitment process e.g. "please contact us if you are disabled and need any adjustment for the interview”.
  • Questions about disability and health can be asked for the purposes of monitoring the diversity of job applicants.
  • Occupational requirements.  There is, however, a need to demonstrate an occupational requirement if a person with a  particular impairment is required for a job e.g. it would be lawful to recruit a deaf blind project worker who has personal experience.  This would be an occupational requirement of the job and lawful.
  • Functions intrinsic to the job.  It is lawful to ask questions about disability or health before the offer of a job is made where the question relates to persons ability to carry out a function that is intrinsic to that job e.g. a scaffolding company is recruiting Scaffolders.  It would be lawful to ask questions about disability or health on the application form or at the interview if the questions related specifically to the applicant’s ability to climb ladders and scaffolding to a significant height.  Both of these factors are intrinsic to the job.

The question arises as to what an employer can or cannot do when a disabled applicant voluntarily discloses information about their disability or health.

The employer must ensure that they do not go any further in responding to such disclosures than are permitted by one of the exceptions (see above).  The most likely scenario is where the disability relates to an intrinsic function of the job.  In such circumstances, the employer can ask further questions which are related to the applicant’s ability to carry out specific aspects of the job which are highly relevant.  The employer must not respond by asking questions about the applicant’s disability or health that are irrelevant to the ability to carry out the intrinsic functions.  As an example, at an  interview for a research post, a disabled applicant volunteers the information that, as a reasonable adjustment, he will need to use voice activated computer software.  The employer responds by asking "Why can’t you use a keyboard? What’s wrong with you?”  This would be an unlawful disability related question because it does not relate to a requirement that is intrinsic to the job, namely, the ability to produce research reports and briefings, not the requirement to use a keyboard.

The correct approach would be to ask the applicant what type of adjustments might be required to enable him to prepare reports and briefings.