When interviewing prospective candidates there are questions that are not advisable to ask. It can be a bit of a minefield so in a series of blogs we help to answer your queries about forbidden interview questions.
Under the Equality Act 2010 it is generally unlawful to ask someone about the state of their health at interview stage in most circumstances. Generally, you should only ask health related questions after you have offered a candidate a job. And then you wouldn’t be allowed to withdraw the job offer after finding out more about their situation.
During an interview you can ask a candidate if they could explain any gaps on their CV, and they may tell you why there were gaps in detail, or just say personal reasons. You shouldn’t press them any further if they do not want to tell you, especially if it is around health.
Questioning a person in an interview about any disability and whether or not it would affect their ability to do their job is grounds of disability discrimination.
If you were worried about sick days, you can’t come out and say “how many sick days have you taken in the last year?” but you could say “how many unscheduled days of work did you miss last year?” This way you aren’t asking a forbidden question but you are likely to get the answer you are looking for.
Pre-employment health questions will not be prohibited where the questions are "necessary for the purposes of":
Establishing if the applicant is able to comply with a requirement to undergo an assessment (that is, an interview or other process designed to give an indication of the applicant's suitability for the work concerned), or establishing if a duty to make reasonable adjustments is (or will be) imposed on the employer in relation to the applicant in connection with a requirement to undergo an assessment;
- Establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned;
- Monitoring diversity in the range of persons applying to the employer for work;
- Establishing whether a candidate has a particular disability if there is a requirement for the role to have that disability.
You generally should not ask an applicant to complete a medical questionnaire prior to being offered a job. Some employers have sent out this type of questionnaire with the application form and therefore the answers may influence the decision to employ. This is not permitted under the Equality Act 2010 to ensure that, as much as possible, health is not a factor in the decision making process when considering a candidate.
You can ask applicants if they need any special access arrangements so they can attend an interview. Similarly you can ask if a person can take part in any assessment as part of the recruitment process, including if they need any reasonable adjustments for this.
Health questions related to the ability of a person to carry out an intrinsic part of the job that they have applied for are fine. For example if the job included climbing scaffolding you could ask if they can foresee any reason why they would not be able to do this.
If a specific impairment is required for the job, for example if you wanted to recruit a project worker who has personal experience with the deaf or blind community, and it is an occupational requirement, then you can ask if they are deaf or blind.
Essentially if you are not sure about a question, don’t ask it. You must not ask anything that could be used against you in a disability discrimination case.
For other questions that can’t be asked please see our blog What Can I and Can’t I Ask During an Interview?
If you are facing a potential legal situation with a job applicant and you need expert legal advice, please contact our team of employment lawyers at Slater and Gordon. Call us on freephone 0800 916 9060 or contact us online and we will call you.