Medical conditions can be a complicated subject for employers. Medical conditions are a very personal subject with details that an employee might not want to willingly or fully disclose, yet the employee’s ability to work could well be impaired, that may lead to changes and adaptations being required.
Employers need to know where they stand to avoid breaking the law, but it is important to be sensitive to the needs of each employee beyond what the law requires. Simply being allowed to ask a certain question does not mean that you definitely should. Tact can go a long way in keeping communication as open and as regular as possible in building up a sufficient degree of trust, that encourages the employee to co-operate.
At a glance – What you can ask?
- Employers can ask questions that help them to determine if they need to make reasonable adjustments. This might include an adapted working environment, or additional flexibility in the job role or working hours.
- An employer can ask about a medical condition if it’s believed that the condition is currently, or might in the future, affect the employee’s ability to do their job.
- An employer can ask a medical professional for an employee’s medical records, or information about their health, with permission from the employee.
- Employers can encourage employees to volunteer information about any health conditions that arise during employment, so they can make reasonable adjustments to support the employee in their work.
- If an employer wants to consider reasonable adjustments for an employee, but is unsure of what the options could be, then they can seek advice from the employee’s GP or an Occupational Health (OH) provider with the employee’s consent.
Recruitment
The ‘recruitment stage’ covers everything up until the point where a job offer is made. After the offer has been made to the applicant, the rules for employees apply.
During recruitment, employers are not allowed to ask any questions regarding health or disability. This is because Section 60 of the Equality Act provides that, in most circumstances, employers must not ask about the health of job applicants before making a job offer. This includes questions about the number of sick days taken at the applicant’s previous place of work.
Exceptions are made for questions that determine the applicant’s ability to take part in any assessments, and to highlight any adjustments that the applicant might require to have a fair shot at the assessment, such as personality tests, manual dexterity tests, or typing assessments etc.
This means that employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking OH professionals to get involved in assessing an employee’s health or fitness until a job offer has been made, other than where a specific exception applies.
This “freestanding” legal requirement has a complex interface with discrimination law. Asking prohibited questions will not, in and of itself, amount to discrimination against a job applicant. However, if inappropriate questions are asked, the burden of proof will fall on the employer to show that no discrimination took place as a result, or that the candidate was rejected because of the consequences of a disability rather than because of the disability itself. The former might be justifiable, the latter is not. In addition, the Equality and Human Rights Commission may independently investigate and take enforcement action against employers that are in breach.
There are also exceptions made for questions that determine whether or not an applicant can do a part of the job that is absolutely essential, i.e. intrinsic to the role, e.g. questions that determine whether applicants can climb or do heavy work. The obvious question surrounds the meaning of the words “necessary” and “intrinsic”. When does an important part of a job become intrinsic? And when is it actually necessary to ask questions? Unhelpfully, the legislation does not provide answers to these questions. Employers should consider carefully what functions are intrinsic, or as per the wording in the EHRC guidance, “absolutely fundamental” to the job being recruited for, bearing in mind the job specification. In most office-based jobs, the manual functions that are truly intrinsic to the role are likely to be few and far between. For example, in most office roles applicants would need to have modern computer literacy, so need not involve asking health questions.
The example used by the Equality and Human Rights Commission (EHRC) is that of a candidate for a scaffolder role being asked about their ability to climb scaffolding at height. This is a very unusual example, and we would prefer to use the example of roles that require frequent manual handling, then questions related to the candidates level of physical fitness may be permissible, providing this objective justification has been clearly stated in advance, both in the job description, person specification and preferably risk assessments. There is no guidance at present on more complex scenarios, such as an office role requiring multi-tasking and at times high levels of stress, however if there is clear evidence that a role generates a very high level of regular work pressure, e.g. dealing with customer complaints, then it might be legitimate to state that being able to have the mental resilience to cope with this is not unreasonable.
An employer may consider it necessary to ask a candidate whether they have any condition that would hinder such activity. The focus should not be on the disability, but the task(s). This means focusing on their recent experience of, e.g. heavy lifting or dealing with the full on pressure of customer complaints, rather than by focusing on health issues that may prevent them from doing so. While this seems an over-cautious approach, there is no case law on the approach that tribunals should take. As a rule, questions about current health are much more likely to be considered “necessary” than questions about past health. Employers should avoid asking questions that start with: “Have you ever suffered from….”
Adjustments during the Application Process
Employers are permitted to ask questions about health if it is necessary to do so, in order to ascertain whether or not any potential candidate with a disability may need reasonable adjustments to be made to the recruitment process (not the role) to allow them to participate, e.g. make special access arrangements to attend an interview. If applicants have to carry out any kind of assessment as part of the recruitment process, then allowances or arrangements may have to be made to ensure that a candidate is not put at a disadvantage.
Ideally, information in this regard should not be requested at the initial application stage, and should be sought only once a candidate has been selected to attend for interview. Candidates should be asked if there are any adjustments required, not whether or not they have a disability. Employers must not to let the knowledge of the fact that an applicant needs adjustments influence the recruitment decision.
Monitoring Diversity
Employers can still ask questions about applicants’ disabilities to monitor the diversity of their workforce. Diversity monitoring forms should be kept separate from other recruitment documents, and should ideally not be made available to any decision-makers in the recruitment process. There are a range of data protection issues to also consider when collating such sensitive personal data, which is another example of a special data category. One final point though, if you decide to monitor such information, then make sure that the data collated is properly used to help improve your diversity to make a real difference.
Conditional Job Offers
The Equality Act restrictions fall away once the employer has offered the candidate the role. As such, an employment offer can be conditional on the individual passing a health assessment.
However, if the information reveals that the candidate is disabled, withdrawing the offer may be discriminatory, unless it can be shown that no reasonable adjustment could be made to enable the candidate to perform the role. To help manage the discrimination risk, where possible, use health questions that are tailored to the particular role, or, if you do use a generic questionnaire, make sure you base any decision on answers to questions which are relevant to the role. If questions or a medical check reveal a condition that will affect an individual’s ability to carry out the role for which they have been recruited, the employer will need to consider reasonable adjustments. This may require co-operation with OH providers, including discussions around how specific adjustments will assist the individual.
If there are no reasonable adjustments that can be made, it is possible for the employer to withdraw the job offer. Withdrawing an offer should always be an absolute last resort, as there is clearly scope for legal claims here, so any adjustments must be very carefully considered. If none are viable, the employer must have an objective business reason to withdraw the role.
Confidentiality of Information
Employers have a duty to maintain medical information about the health of applicants, employees and ex employees. The ICO provide guidance.
They start with general advice, such as keeping paper records under lock and key, and using password protection for computerised ones. Only staff with proper authorisation and the necessary training should have access to employment records.
Where possible, sickness records containing details of a worker’s illness or medical condition should be kept separate from other less sensitive information, for example a simple record of absence. This can be done by keeping the sickness record in a sealed envelope, or in a specially protected computer file. Only allow Managers access to health information where they genuinely need it to carry out their job.
Employers are not responsible for all aspects of their employees’ state of health, but they are charged with a duty of care, ensuring the employee is medically fit for a certain job (for example, driving a bus). They must ensure that the work conditions do not cause adverse health effects on their workforce (such as an occupational illness). If you wish to collect and hold information on your workers’ health, you should be clear about why you are doing so, and satisfied that your action is justified by the benefits that will result.
The law requires openness. Workers should know what information about their health is being collected and why. Gathering information about workers’ health covertly is unlikely ever to be justified.
Once you are clear about the purpose, check that the collection and use of health information is justified by the benefits that will result. In doing so, remember that:
- gathering information about your workers’ health will be intrusive;
- workers can legitimately expect to keep their personal health information private, and expect that employers will respect this privacy;
Be aware that all information relating to a person’s health will be sensitive personal data, (now called special categories) for the purposes of data protection legislation. Appropriate consent will need to be obtained to ensure compliance with the legislation. Employees are permitted to make a data subject access request to access personal data held about them by their employer – this includes health and medical reports.
Medical information voluntarily offered up by a candidate during an interview
The fact that a candidate brings up their health at an interview does not change the position – discussions around a candidate’s health should not normally take place before a job offer is made.
Where this happens (and the information is not given in the context of discussing an intrinsic function of the job), the Manager should explain that they do not need to know about a candidate’s health at this stage in the recruitment process, and should then move on. Managers need to be aware that they should not make any comments during the interview about the potential impact of that condition on the candidate’s ability to perform the role, unless it is intrinsic to the job.
What if an employee subsequently reveals they have an existing medical condition?
It is difficult to rely on inaccurate or misleading answers in this context as the basis for a fair and/or non-discriminatory dismissal. This is because it is not clear whether or not an employee is actually obliged to reveal a medical condition; there is nothing in the Act that requires applicants to disclose their disabilities, and the EHRC Code recognises that people with disabilities may be reluctant to disclose them.
More extreme cases may justify dismissal where no adequate explanation for the inaccuracy is provided. For example, if the individual holds a role where honesty and integrity can genuinely be said to be a fundamental requirement of the role, or where the impact of the medical condition puts their health, safety or welfare, or that of others, at risk. If it turns out that an employee has a medical condition that prevents them from doing their role (and no reasonable adjustments can be made), the fact that they cannot do the role could justify dismissal, but proper consideration should be given to alternatives, such as whether or not there is a suitable alternative vacancy.
Tips for handling Health and Disability Issues in the Recruitment Process
- Train your interviewers so they understand what questions they can and can’t ask candidates about health/disability.
- Regularly review any health-related questions that are asked of successful candidates to ensure they remain relevant to the role.
- If a successful candidate does have a disability and reasonable adjustments need to be considered, make sure those deciding how the role can be adjusted understand what compliance with the duty entails.
- Questions should be restricted to whether there is any specific health reason why the individual cannot perform any of these tasks.
- Questions should go no further than is necessary. Past medical history will probably be irrelevant.
- Questions about a disabled person’s ability to carry out a particular role should be accompanied by a question about their ability to do so with reasonable adjustments in place.
- Consider whether in fact a role specific application form or assessment process is appropriate.
- Remember the provisions will capture not only questions asked of an applicant, but also those asked of a third party, for example, in a request for a reference made to the applicant’s current or previous employer.
- Offers of employment should, therefore, be made subject, as appropriate, to satisfactory health checks; the outcome of which could potentially lead to reasonable adjustments being made or, provided it is justified, the offer of employment being withdrawn.
During Employment
Employees are protected by law when it comes to asking questions about medical conditions. The burden of proof is on the employer, who must be able to show that they had a valid reason for asking a question. If an employee believes that they were asked a question by reason of discrimination, then the employee can take legal action.
The law on access to medical reports is unfortunately not always very clear. The main regulations are the Data Protection Act legislation and the Access to Medical Reports Act 1988 (AMRA), but in addition, common law applies and Doctors must also take into account any guidance from the General Medical Council. The Equality Act is also important, as it protects against discrimination in the workplace.
To obtain a medical report, you must comply with the law which provides employers with a right to access medical reports for employment purposes provided by a medical practitioner who is, or has been responsible for, the individual’s clinical care.
There are many reasons why an employer would like to obtain medical reports, such as:
- to understand when someone on long-term sick leave is likely to return to work;
- to establish whether there is any underlying medical reason behind an employee’s regular short term absence;
- to determine whether an employee is suffering from a condition which would amount to a disability and, what reasonable adjustments need to be made;
- in relation to an employee who is at work, but whose fitness to undertake their role appears to have deteriorated, either following a period of absence or for other reasons;
- to assist an employer’s compliance with its health, safety, and welfare (well-being) responsibilities;
What the Report should cover?
Rather than make general requests about the employee’s health or medical condition, the request should refer to the employee’s ability to do their job. It should ask specific and relevant questions, and be limited to the reason for the obtaining of the report. For example, if you have an employee who is on long-term sick leave and you are considering dismissal, you should ask specifically what their likely date of return to work is, if they have any disabilities, if there are any reasonable adjustments that could be made to accommodate their disability, or if they have any specific recommendations about redeploying the employee into other available roles in your business.
Applying for a Medical Report
There are strict conditions which need to be met if an employer wishes to make an application to see an employee’s medical report. They must:
- inform the employee in writing of their intention to make this application;
- notify the employees of all these rights under AMRA, mentioned above;
- receive the employee’s explicit, written consent;
Employers should send evidence of the employee’s consent to the doctor when making the request.
How can the employee respond?
Employees can do any of the following:
- decline to give their employer their consent;
- consent to the application and agree that the report is sent directly to their employer;
- provide their consent to the application but state they wish to see the report prior to it being sent to the employer;
What if an employee refuses to provide consent?
A provision in the employee’s Contract of Employment may oblige employees to undertake a medical assessment if requested, and allow employers to see medical reports. Depending on the wording of the provision, the employee would be in breach of contract and face disciplinary action if they did not provide their consent. However, the employer will still need to follow the procedure in AMRA, and need to make sure that the request is reasonable and proportionate.
If your contract does not allow this, you cannot force an employee to provide their consent. If they do not consent, you should explore the reasons why. You may be able to allay their fears. For example, if they are worried that everyone in the office is going to know their private business, you can confirm that this information will remain private.
Appendix 4 of ACAS’s guide: Discipline and Grievance at Work makes it clear if an employee does not give their consent, they should be notified in writing that the employer will take a decision based on the evidence they have available to them, and this could lead to dismissal. This may persuade an employee to give their consent. An Employment Tribunal will generally accept that the employer has little option but to make a decision, including a decision to dismiss, based upon the information that it does have.
Who should the employer instruct to undertake the medical report?
The choices of whom to instruct to undertake the report are generally:
- The employee’s GP;
- A specialist doctor, consultant, or other health professional e.g. physiotherapist or counsellor treating the employee;
- An independent health or occupational health practitioner not involved in the employee’s medical care; or
- The employer’s own doctor, or the employer’s regular Occupational Health service;
We would rarely recommend an employee’s GP.
Remember, an Employment Tribunal will consider whether you properly assessed the employee’s condition or illness to find out their likelihood of returning to work or ability to do a job. If medical evidence is sought and decisions are based on that report, an Employment Tribunal is likely to deem consequent action to be fair. If recommendations within a report are not implemented, then it is important that there is justification as to why it was deemed the suggestions could not be reasonably applied, e.g. too expensive or totally impractical.
We would also advise that in matters of employee health, you should seek expert advice very early on. Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.
