EMPLOYER’S GUIDE | Health and Disability in recruitment

The Equality Act is very strict on what health or disability questions employers can ask during the recruitment process.

As a general principle, it is not permissible for an employer to ask a job applicant any questions about their health or disability until they have been offered a job.

However, in very specific circumstances, you can ask before offer stage, for example, to determine whether the applicant can take part in an assessment to ascertain their suitability for the job or to find out whether a job applicant can perform a function that is fundamental to the job.

Beware of the GDPR

If you do decide to ask the employee to fill in a medical questionnaire after you have made them a job offer, you need to beware of your obligations under the GDPR, which came into force on 25th May 2018.

An individual’s medical data constitutes special category data (formerly known as sensitive data). If you are processing this type of data, you need:

  • a lawful basis to process this data, for example, to comply with legal obligations and
  • a separate condition for processing special category data, for instance, processing is required for the purposes of carrying out obligations in the field of employment law.

So it may be that the purposes of the medical questionnaire are to alert you to any issues that affect the employee’s health to ensure their health and safety and those of their colleagues; or to make reasonable adjustments to remove the adverse effects of any company provision, criterion or practice.

Remember that under GDPR, it is important to ensure that you only collect data that is necessary for its stated purpose and applicants must be informed of how and why this information is processed. This should be in a privacy notice that must be given to the prospective employee before you ask them to fill in the medical questionnaire. 

Take care when withdrawing a job offer

Employers will be concerned about whether the applicant has a previous bad history of sickness absence or has any underlying health issues that will lead to absences and become disruptive to the business. If you find out something that doesn’t sit well with you, you may wish to withdraw the job offer, but can you do this?

Unconditional job offers

Once the applicant has accepted an unconditional job offer, there is a legally binding contract of employment between the employer and the applicant.

If you do not hire the applicant, they can take legal action against you for ‘breach of contract’.

If they take action against you for breach of contract, they may be entitled to damages or compensation in line with their notice period – the time for which they would have been employed before you would have been permitted to dismiss them. In cases of employees in senior or managerial positions, this can be very costly as it could be equivalent to three or six months!

However, if you withdraw the job offer for a discriminatory reason, for example on the basis of their disability, there would be other losses the applicant could claim too. 

Conditional job offers

However, the situation is different if you have made a conditional job offer to the applicant.

A conditional job offer can be withdrawn if the applicant does not fulfil all the conditions of the offer. The conditions could include satisfactory references, a criminal record check, a qualifications check or a health check. However, if the applicant does meet all the conditions and you decide to withdraw the offer, the applicant can take legal action against you for breach of contract.

Be warned of withdrawing the offer for a discriminatory reason.

If you have made a conditional offer and found their health condition constitutes a disability, you must be very careful when deciding to withdraw a job offer. Withdrawing a job offer simply because the medical check shows the applicant has a disability is likely to constitute direct discrimination.

To be classified as disabled, the worker needs to show they suffer from a long-term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial or minor) impact on their ability to carry out day-to-day activities. A person will meet the disability definition if they have HIV infection, cancer or multiple sclerosis, but someone who has an alcohol dependency will not fall within under this definition.

If these pre-employment checks do reveal that they are disabled, you have an obligation to consider what reasonable adjustments are necessary. You should try and find out more about their condition, how it affects the individual and their ability to do their job. An employer’s failure to abide by a duty to make reasonable adjustments is also a type of discrimination.

Seek legal advice

This is a complex area of the law, therefore make sure to contact your Employment Law Adviser who can guide you.