An investigation carried out by the Equalities and Human Rights Commission (EHRC) has highlighted the issue of asking candidates about their health during the recruitment process.

In November 2018, the EHRC received evidence from the National AIDS Trust that Elite Careplus Limited (ECL) was asking questions about applicants’ health during the recruitment process. Enforcement action was launched against ECL and found the questions to be unlawful.

The Equality Act 2010 makes it unlawful for employers to ask about an applicant’s health or disability before they have been offered the job, or before including them in a pool of successful candidates to be offered a role at a later date, except in specified situations. When inviting job applicants to attend interviews, employers are entitled to ask whether they will require any adjustments for the interview, in order to assess the specific needs they may have, and ensure that managers are aware of the need to make reasonable adjustments for disabled people in the interview process.

The law means all candidates are given the opportunity to demonstrate that they have the relevant skills and abilities to do the job, without being screened out.

Alastair Pringle, Interim Chief Executive at the Equality and Human Rights Commission, said:

“Disabled people often face significant barriers to employment and are twice as likely to be unemployed. No one should be put off from applying for a job out of fear of being asked detailed and unnecessary questions about their health.

“Employers might think they’re doing the right thing when they ask these questions, but not only are they unlawful, they risk ruling out great potential employees. As businesses begin to rebuild after COVID-19, we will continue to work with employers to provide clarity on their legal responsibilities and to protect people from discrimination during all stages of recruitment.”

ECL used a job application that included a medical questionnaire asking applicants if they ever had a number of health conditions. These included, but were not limited to:

• ‘Tuberculosis, asthma, bronchitis or chest complaints.’
• ‘Depression, mental illness or nervous breakdown.’
• ‘Dermatitis or skin trouble.’

They were also asked if there was:

• ‘Any current / recent medication condition or treatment which might affect you [sic] attendance or performance at work’, and
• ‘Any illness / medical condition that prevented you from attending work, normal duties or activities for more than one week during the past year’.

The care agency has now removed the questions from its job application form and updated its recruitment process.

Employers can download guidance on Section 60 of the Equality Act 2010 from the EHRC website.