Are there any risks attached to asking job candidates about the number of days' sickness absence they have had in the past year?

Many employers are keen to know whether or not job applicants have a reliable attendance record. However, there is a risk of a claim being made under the Equality Act 2010 if one of the reasons for an applicant's previous sickness absence is due to a disability within the meaning of the Act, and the prospective employer takes account of the absence information in deciding not to offer the job to that applicant. If the employer rejects the applicant because of his or her disability, this would be direct disability discrimination under s.13 of the Act. If the reason for the rejection is the amount of sick leave that the employee has had in the past, this would amount to unfavourable treatment for a reason arising from the applicant's disability, and would be discrimination under s.15 of the Act.

Discrimination arising from disability is not unlawful if the employer can justify it by showing that the treatment is a proportionate means of achieving a legitimate aim. The employer will always be required to show that it first considered whether or not there were any reasonable adjustments that it could make to avoid the individual being at a substantial disadvantage.

Section 60 of the Equality Act 2010 restricts the circumstances in which an employer can ask an applicant about his or her health before making an offer of employment. This would include enquiries about the amount of sickness absence that he or she has had. Such enquiries can be made of an applicant only if they are necessary for the purpose of:

  • establishing whether or not he or she will be able to undergo an assessment (which would include an interview), or whether or not the employer will be required to make reasonable adjustments to the assessment process;
  • establishing whether or not he or she will be able to carry out a function that is intrinsic to the work;
  • diversity monitoring;
  • taking positive action under s.158 of the Act; or
  • establishing whether or not he or she has a disability, where having that disability is an occupational requirement for the role.

It is unlikely that a question about the number of days' sickness absence that an employee has had would be necessary for any of the above purposes. Simply asking such a question does not amount to unlawful action under the Act, but if the candidate brings a direct disability discrimination claim relating to the failure of the employer to offer him or her employment, the fact that the question was asked will shift the burden of proof to the employer. The employer will then have to show that it had a non-discriminatory reason for rejecting the applicant.