Should employers avoid asking about general wellbeing during interviews?

Although it is clear that, under s.60(1) of the Equality Act 2010, employers must not ask questions about health during interviews, there is nothing specifically in the Act to suggest that they cannot ask a candidate how he or she is, as "small talk" to break the ice at the beginning of an interview. Many employers may choose to ask interviewees how they are as a matter of courtesy.

In the event that an unsuccessful job candidate interprets a general question about wellbeing as a specific question about health and brings a disability discrimination claim to an employment tribunal, it will be for the tribunal to determine whether or not the employer discriminated against the candidate in reliance on the answer given. In the absence of case law on this point, employers should take care to pose questions about how applicants are only in very general terms and to ask them only during the initial introductions at the start of the interview. In the event that an employee responds with specific information about his or health, the employer should not ask any further questions about health other than to establish whether or not the applicant requires adjustments to be made to the interview process.