Q: Can I ask sickness/health related questions during recruitment, or is this breaking the law under the Equality Act 2010?
A:The Equality Act 2010 states that an employer “must not ask about the health of the applicant”.
However, under section 60, asking health-related questions does not breach the law on disability discrimination; it is the employer’s reliance on the answers provided that may be a breach.
The way the provisions in the Act are drafted means that an employer that asks health-related questions before making a decision about who to appoint, and then fails to appoint a disabled candidate, will, in the event of a disability discrimination claim, have to prove that there were other reasons (not relating to the disability) for not appointing the disabled candidate.
In other words, if you ask health-related questions prior to making a job offer there will be an assumption of disability discrimination which you will have to disprove 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.
