Withdrawing a job offer due to sickness absence

It’s an exciting time when you are sifting through job applications and conducting interviews looking for that fantastic candidate to walk in and be “the one”.  

In the back of your mind, there are always concerns that 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.

Your natural reaction is to ask them these questions in interviews. And equally, if you find out something that doesn’t sit well with you, you may wish to withdraw the job offer. This article will clarify what you can and can’t do in these types of situations.

After all, managing absence is a huge challenge for any organisation.

Free Download: Get the Definitive Guide to Managing Sickness Absence

Can I ask applicants about their health in a job interview?

The law is very strict on asking health or disability questions 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.

It is also not advisable to ask someone how many sick days they took in their last role.

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.

When can I withdraw a job offer? Can I do this if I find out someone has health issues?

The law on withdrawing a job offer differs according to whether you have made an unconditional job offer or a conditional job offer.

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 indeed as it could be equivalent to three or six months!

However, if you withdraw 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.

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. An employment law specialist will be able to help you out with this.

Case study

The recent case of West v Yorkshire Ambulance Services NHS Trust shows the dangers for employers.

In this case, a disabled nurse received a conditional offer of employer subject to satisfactory completion of pre-employment checks. Her prospective employer decided to revoke the job offer after seeing her previous absence record, an Occupational Health report and references. It was revealed she had been on long-term sick leave for 18 months before her last role’s employment was terminated.

The nurse claimed that she had suffered discrimination arising from her disability under the Equality Act and the Employment Tribunal upheld the claim. They were taken aback by the speed at which the employer withdrew the offer after receiving the results of the pre-employment checks and concluded that the key reason for the withdrawal was that the absences had made the employer doubt her ability to do the job.

But what is a “disability”?

The definition of “disability” under the Equality Act is quite broad. It is perhaps much broader than you may first think.

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 under the Equality Act 2010 if they have HIV infection, cancer or multiple sclerosis. However, for example, someone who has alcohol dependency will not fall within under this definition.

Remember, disabled workers have certain additional rights. They must not be treated less favourably because of a disability or receive unfavourable treatment because of something arising out of their disability. Employers must also make reasonable adjustments for the worker.

What are Reasonable Adjustments?

What can be considered as “reasonable adjustment” can be wide-ranging.

Examples include:

  • doing things another way
  • making physical changes
  • changing their equipment
  • allowing employees who become disabled to make a phased return to work.

Free Download: Get the Definitive Guide to Managing Sickness Absence

Remember…

We would always recommend you seek legal advice before taking action to mitigate any risks of claims.

Director of Legal Services

James Tamm

Whether you’re facing an immediate challenge or just want the reassurance of an expert second opinion, we’re here to offer clear, commercial advice so that you can focus on what you do best.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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