Key Takeaways
- The Equality Act 2010 protects employees: ‘Substantial’’ and ‘long-term’ health conditions are considered a disability under law and, therefore, are protected from discrimination.
- It is generally unlawful to ask health-based questions to prospective employees: An employer cannot ask about an individual’s health until after offering them a position, however, there are some exceptions to this.
- You can ask an employee about their health: But only in specific circumstances, such as to make reasonable adjustments or to check that they can meet the requirements of their role.
Navigating employee medical conditions and managing long-term employee illness can feel overwhelming, especially when you want to make sure that you are being conscientious, accommodating and supportive. However, from a business perspective, poor employee health and illness do have implications on costs and productivity.
Juggling the needs of your employees and the needs of the business can be complex, especially when it involves employee health and medical conditions, but abiding by the law and respecting confidentiality are of vital importance.
In this guide, we provide clarity on the laws relating to employee health. We also discuss if and when employers can ask employees about their health and medical conditions, giving examples of when it would be appropriate to do so.
Employee health and the law
The Equality Act came into force on October 1st 2010, merging nine previous pieces of legislation which covered discrimination and equality, including in employment.
Under the Equality Act 2010, it is against the law to discriminate against anyone on the basis of any ‘protected characteristics’. One of these protected characteristics is disability, the definition of which is ‘a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do ‘normal daily activities’. Under this definition, disability is broad and depends on the individual. However, there are conditions which the Equality Act 2010 automatically deem a disability:
- Cancer, even once in remission
- Multiple sclerosis
- HIV infection
- Blindness, severe sight impairment, sight impairment or partial sightedness
- A severe, long-term disfigurement, such as a skin disease
Under the Equality Act 2010, an employer cannot treat any employee unfairly or put them at a disadvantage as a direct result of a health condition.
Asking questions about employee health during recruitment
In general, an employer should not ask any job applicant about their health, medical conditions, or whether they have a disability until they offer them a job. This includes asking about any periods of absence in previous employment.
There are, however, a few exceptions where it would be lawful to ask health-related questions during the early recruitment process:
- To determine if an applicant requires reasonable adjustments to participate in the recruitment process. For example, holding an interview on the ground floor to ensure it is wheelchair accessible.
- To establish whether the applicant can take part in an assessment to determine their suitability for the job. For example, if a candidate needs to demonstrate they can safely climb scaffolding as part of the recruitment process at a building firm.
- To support ‘positive action’ such as a guaranteed interview scheme for disabled applicants.
- To monitor diversity amongst applicants, although you should keep this information separate from application forms and ensure it is anonymous.
- To find out whether a job applicant would be able to undertake a function that is intrinsic to the job. For example, asking whether a candidate would be capable of lifting and supporting residents in a care home.
- If there is an occupational requirement for the person to be disabled. For example, if a charity supporting deaf children requires a candidate who is deaf and uses British Sign Language.
When can an employer ask questions about employee health?
After offering an individual a job and/or once they are in employment with your company, there are situations where it may be suitable to ask questions about their health:
To make reasonable adjustments
If an employee tells you that they have a medical condition, you may ask questions about this to be able to make reasonable adjustments. Reasonable adjustments encompass anything an employer can do to make sure that an employee is not at a disadvantage due to their health and can continue to work, should they wish.
For example, if an employee has been diagnosed with cancer, reasonable adjustments may include allowing them to work from home and giving them additional breaks to tackle fatigue.
Fit for task medical assessments
Some roles require medical assessments, with it being a contractual requirement that employees take part and pass such assessments to ensure continuity of employment.
Drivers, for instance, may require routine eye examinations to ensure their vision is good enough to continue working in that role. Other employees that may require fit for task assessments, and therefore will be subject to health-based questions, include:
- Those working at heights
- Confined space workers
- Night workers
- Lead worker
- Lone workers
- Heat workers
Statutory Sick Pay
If an employee is too ill to work, then they may be eligible for Statutory Sick Pay (SSP). To determine their eligibility and ensure you are documenting everything correctly, you will likely need to ask about the reason they are unable to work.
In circumstances in which an employee is off sick often or they are off for a long time, you can also seek medical advice about their condition from a medical advisor or your employee’s GP. However, you must have explicit permission from your employee to do this.
National security vetting
Some employers require employees to undergo national security vetting to ascertain their trustworthiness, integrity and probable reliability. This vetting process may include health-related questions about medical conditions or medication that is being taken.
For enrolment into employee health benefit programs
If as a company, you provide all your employees with private health coverage, you or the health coverage provider may ask disability or health-related questions that are necessary to complete an employee’s enrolment in the program. If you are looking for ways to support employees with cancer, then Perci Health is here to help. We offer virtual cancer clinics with friendly and professional specialists for anyone impacted by cancer. Individuals can also sign up for an account to learn more about our leading cancer professionals and book on-demand appointments.