Is it better that I know about an employee’s mental health history, or will knowledge of this information mean my decision will be more discriminating if their mental health is a high risk? What is the law regarding mental health and equal recruitment?

The Equality Act means that except in very restricted circumstances you cannot ask a candidate about their health or disability until you have either offered them a job, outright or conditionally, or included them in a pool of successful candidates to be offered a job when a position becomes available. The aim is to avoid any preconceptions about disability.

At the recruitment stage this means that you should avoid asking questions about health, both physical and mental, on application forms or during interviews. This includes sending a health questionnaire for applicants to fill in before offering employment. Any questions you ask about previous sickness absence, mental health history or physical fitness will be regarded as questions that relate to health or disability and could cause you some difficulty.

You are free to ask health questions after a job offer has been made or the person has been included in a group of successful candidates. At that stage, you can carry out investigations to make sure that someone’s health or disability would not prevent them from doing the job. But, if a disability is revealed, you are obliged to consider whether there are reasonable adjustments that would enable the individual to do the job. What you would need to look at with them at this point is whether or not the job can be structured or performed in such a way that means that they can carry out the role for you effectively without putting themselves at significant risk.

Mental health covers a very broad area so you need to consider what you are particularly worried about. Is your concern over ability, reliability or how to protect their wellbeing? Is there a specific concern about a particular form of mental health and why are you concerned about this rather than other forms of health?

Generally an individual with a diagnosed mental health condition is aware of what triggers it, how to manage it and how to recognise and deal with problems as they occur as they have established coping strategies. What is required from an employer is to understand any specific needs, be willing to provide appropriate support and to listen if the employee requests help. It is no different from supporting anyone else with a physical disability or a learning difficulty. Someone with a complex mental health history can be a valuable asset to your company if given the chance.

For any further clarification, please call our 24 Hour Advice Service on 0844 892 2772.