Is it a breach of the law on disability discrimination to ask about health during recruitment?
Section 60(1) of the Equality Act 2010 states that an employer "must not ask about the health of the applicant". However, under s.60(3), asking health-related questions does not contravene the law on disability discrimination; it is the employer's reliance on the answers provided that may be a contravention.
The way the provisions in the Act are drafted means that an employer that asks health-related questions prior to making a decision about whom to appoint, and that fails to appoint a disabled candidate, will, in the event of a subsequent disability discrimination claim, have to prove that there were other reasons for its failure to appoint the candidate to the role that were not related to their disability. In other words, there will be a presumption of disability discrimination if the employer asks health-related questions prior to making a job offer, which the employer will have to rebut if an unsuccessful candidate brings a claim of disability discrimination. Defending a claim is likely to be difficult and time consuming. Therefore, it is advisable for employers not to ask health-related questions in most cases.
In addition, the Equality and Human Rights Commission (EHRC) can take direct enforcement action against employers that ask pre-employment health questions, although in practice this is likely to be rare.