I recently read what I thought was a staggering statistic which was that 25% of employees experience a mental health condition each year. This statistic comes from Mind, the mental health charity who make the point that one in four people in the UK will experience a mental health condition each year. This often results in time off work but can you do anything at the interview stage to determine whether a potential employee has a mental health condition or would this be unlawful?
From my own experiences, many people who experience mental health conditions are often somewhat reluctant to talk about them openly and even less likely to voluntarily offer this information at an interview.
I would very strongly suggest that you do not ask any potential employee at a job interview any health-related questions as this would not be legal.
The Equality Act 2010 states that an employer must not ask about a job applicant’s health (including whether they have a disability) before offering them any work. The Act does give one exception and that is where you have a duty to make “reasonable adjustments”. In relation to this duty, you are able to ask questions of the potential employee to determine whether or not you need to make any adjustments for them during the recruitment process.
Many employers will be genuinely concerned about the physical qualities needed to carry out certain jobs, even allowing for reasonable adjustments. The starting point is that an employer must not discriminate against any job applicant in deciding to whom a job should be offered. (Section 39 of the Equality Act.)
Pre-employment enquiries about disability and health are not permitted before making an offer of work or shortlisting for a position. (Section 60 of the Equality Act). Strictly speaking an employer does not contravene the rules merely by asking a prospective employee about their health but they lay themselves open to an accusation of discrimination if subsequently a job is not offered; and defending such an accusation at an employment tribunal will be much more difficult.
However, employers are protected and may ask relevant questions in certain specified situations:–
- Where it is necessary to carry out an assessment of an individual before offering the job or to find out if the duty to make reasonable adjustments will be necessary for the purposes of an assessment. This relates to the selection process.
In order to determine if the prospective employee will be able to carry out a function that is intrinsic to the work concerned. A very important point is that this provision applies after any reasonable adjustment would be made. So, if an employer takes the view that certain physical characteristics are essential relevant questions are permissible.