The Equality Act 2010 introduced for the first time a
restriction on when employers can ask job applicants detailed questions about
health or disability. Such questions should now only be asked after interview,
once a job offer has been made.
This restriction was introduced as a direct result of
lobbying by disability charities, including NAT and Terrence Higgins Trust.
There was widespread suspicion that the use of such questionnaires led to
discrimination against candidates who revealed their disability, although this
was not always easy to prove. Now that only candidates with a provisional job
offer can be asked to complete a health questionnaire, it will be easier to
demonstrate discrimination should a job offer be withdrawn.
Neither employers nor occupational health staff working for
them are permitted to ask questions about health, on an application form, at an
interview or otherwise during the application process.
Questions may only be asked after the applicant has been
offered a job (either on a conditional or unconditional basis), or after the
applicant has been included in a pool of successful candidates to be offered a
job when a position becomes available.
On the other hand, employers can ask candidates about
disability on an equal-opportunities
monitoring form. This form is different from the main application form in
that completing it is usually optional, it should be anonymised and it should
be analysed separately. The purpose of an equal-opportunities monitoring form
should be for the employer to monitor how well they are performing in terms of
equality, diversity and compliance with anti-discrimination legislation.
Questions may be asked about the applicant’s ethnicity, gender, age,
Applicants are not usually obliged to complete an
equal-opportunities monitoring form. Moreover, dishonesty in it would not have
the same implications as dishonesty on a job-application form or a subsequent
medical questionnaire. It does not form part of the employment contract.2
There are some other exceptions, when questions may be asked
during the application process:
- The employer can ask if the
applicant will need any reasonable adjustments for the interview or another
activity that is part of the recruitment process. This would enable a
wheelchair user to check that the interview venue would be accessible. The
employer should not ask about
reasonable adjustments that would be needed to do the job itself.
- If the employer guarantees to
interview every disabled applicant or has another measure to benefit disabled
applicants, they may ask about disability. Applicants would be under no
obligation to answer this type of question.
- If the employer can demonstrate
that a health-related question relates to a person’s ability to carry out a key
part of the job, the question may be asked. For example, a role may require the
employee to drive safely, and a person unable to do so because of recurrent
epilepsy may not be suitable for that job. The employer may need to ask about
the person’s ability to do this part of the job if reasonable adjustments were
put into place.
- If the employer can demonstrate
that they have a valid reason to require a person with a particular health
issue for the job, they may ask about that health issue. This would enable a
peer support group for people with HIV to specify that applicants must be
living with HIV themselves.
- Employers who need to vet
applicants for the purposes of national security may ask health-related
After a provisional job offer has been made, it is permitted
for the employer to assess the suitability of a job applicant, in terms of their
health, for the job they have applied for. Certain jobs may require physical
stamina, particular abilities that could be compromised by ill-health, or work
in a hazardous environment.
But there are very few work roles in which HIV infection
could be a reason not to employ someone. Although this is considered unjust by
many, there is a ban on healthcare workers with HIV working in roles where they
perform exposure-prone procedures, such as surgery. A job requiring travel to
countries which restrict the entry of people with HIV could be another. There
are some working environments where the risk of exposure to opportunistic
infections such as tuberculosis could be a concern for an employee with HIV.3
In most cases, HIV is irrelevant to a person’s ability to do
the job, so the withdrawal of a job offer because of HIV status would be
illegal. The statutory Code of Practice gives this example:
A woman is offered a
job subject to a satisfactory completion of a health questionnaire. When
completing this questionnaire the woman reveals that she has HIV infection. The
employer then decides to withdraw the offer of the job because of this. This
would amount to direct discrimination because of disability.4
questionnaire should only collect as much information as would be relevant to
assess suitability for the job in question. Under the Data Protection
Act 1998, if employers wish to collect information on their workers’
health, they should be clear about why they are doing so and satisfied that the
intrusion of privacy is justified by the benefits that result.5
with a form that asks about HIV, individuals may prefer to speak in confidence
to an appropriate member of staff, either in addition to, or as an alternative
to, filling in a questionnaire. This gives an opportunity to explain in more
detail how they are successfully managing their condition and be on hand to
answer any questions, rather than rely on a form.6
It may also
be possible to explain that there is an underlying medical condition which is
covered by the protection of the DDA and which may require reasonable
adjustments, without specifying HIV. Doctors sometimes call this “giving the
prognosis not the diagnosis”; a GP or occupational-heath doctor may be able to
provide supporting evidence concerning the employee’s health, on this basis.
anti-discrimination legislation, employees are not required to disclose their
disability at any specific moment. While reasonable adjustments can’t be made
until the employer is aware of the disability, the employee can disclose this
at any stage he or she chooses.
misleading information on a medical questionnaire could have consequences for
the employment contract. If an employee incorrectly answered “no” to a question
about HIV infection and this was subsequently discovered by the employer, it
could constitute a breach of mutual trust, and so invalidate the employment
cent of employers have dismissed an employee while in employment because they
had given misleading health information.7 Nonetheless, in some cases, employers may leave themselves open to a challenge
of direct disability discrimination in doing so.
It may be
preferable to leave a question on a form blank than to answer “no”. As such,
the employee is simply not answering, which means he or she is not disclosing,
but isn’t misleading either. It may also be easier to disclose HIV at a later
stage if the answer has been simply left blank.
information on all aspects of employment, see NAM’s Social & legal issues for people with HIV.