As every employer knows, asking questions regarding an applicant’s health or disability during the initial stages of recruitment, and using the information gained to discriminate against them, is unlawful. But is it ok to ask certain questions in certain circumstances? Let’s take a look...
As a general principle, questions of this nature should only be asked after
the applicant has been offered the position – but there are
some exceptions where these questions are completely reasonable and within the law:
Disability and the law
- Assessments – where an assessment is part of the application process, the employer has to make sure that the applicant can take part, or enquire if they wish to have any reasonable adjustments provided to allow them to participate.
- In-role adjustments – an employer may ask about a disability in order to discuss whether reasonable adjustments are needed to enable them to perform the job, whether you can implement them, or if you need to suggest alternatives.
- Specific tasks – rather than assuming that an applicant is unable to perform specific tasks that are intrinsic to the role, it’s ok to ask them questions regarding their health and disability in order to ascertain this. For example, if the job involves lifting heavy objects or climbing ladders.
The law provides protection for disabled workers who require reasonable adjustments to be made in order to give them the same opportunity as a non-disabled person.
The need to provide these adjustments must not
be a reason to deny promotion to a worker who would be most suitable for the role, or the reason behind their dismissal. If you dismiss an employee solely because of their disability, or you refuse to give them a job offer for that same reason, then they can make a tribunal claim against you for discrimination.
If a disabled candidate isn’t offered the job, it should be due to a fair, non-discriminatory reason, such as their performance at the interview or other recruitment stages – rather than due to their disability, even though they’re actually the best person for the role.
It’s also important that you don’t make assumptions regarding any potential reoccurrence of a past disability without any medical support, as a refusal to offer them the job based on this reason would also be deemed discriminatory.