In this second in a series of three articles on how to conduct a job interview, we consider the thorny issue of asking questions about the candidate’s health and disabilities.

Make sure you don’t trip up with this – asking an applicant these types of questions can be discriminatory.

You can read the first post on 6 Things You Can’t Ask in a Job Interview here.

When can I ask an applicant about their health and disability?
As a general principle, it is not permissible for an employer to ask a job applicant any questions about their health or disability until they have been offered a job.

It is also not advisable to ask someone how many sick days they took in their last role.

Are there any exceptions?
In certain circumstances, you may be able to ask questions before offer stage. This includes:

  • To determine whether the applicant can take part in an assessment to ascertain their suitability for the job. For example, if the role involves working on scaffolding, you may ask an applicant to undertake an assessment to show they can climb ladders safely.
  • To establish whether the applicant needs any reasonable adjustments during the recruitment process. For example, if an applicant has a speech impairment, they may require more time to prepare for the interview.
  • To find out whether a job applicant can perform a function that is fundamental to the job. For instance, you may ask questions about whether they are capable of lifting a certain weight if they work in a care home and need to help and support residents, or if they can accurately distinguish colours if they are an air traffic controller.
  • If disability is an occupational requirement of the role. For example, if you want to hire a blind worker to work with blind children.
  • To monitor the diversity of applicants.
  • If there is a requirement to scrutinise applicants for national security purposes.

What  if the applicant provides information about their health or disability voluntarily?
Where a disabled applicant voluntarily reveals information about their disability or health, you should not allow the information to influence your decision.

What action can an applicant take if I have asked discriminatory questions in a job interview?
The key risk is that an applicant believes that they have not been offered the job because of a disability, which could result in claims being made against you.

If an applicant believes you have asked unlawful questions about their health or disability, they are entitled to lodge a complaint with the Equality and Human Rights Commission. The Commission has the right and power to take action against the employer.

An applicant can only bring a case to an Employment Tribunal if they believe that the employer has used information to discriminate against them because of their disability.

Contact your Employment Law Adviser for more advice and support.

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