Here are some more Q&A examples that illustrate how section 60 is intended to work in practice across the employer – employee relationship.
Question: At an interview for a research post a disabled applicant volunteers the information that he will not be able to use standard computer software to prepare reports because of the nature of his impairment. The interviewers are not sure whether they can ask additional questions about this.
Answer: If the preparation of reports is an intrinsic part of the job then additional questions can be asked to establish whether there are reasonable adjustments that can be made – for example, the provision of a voice activated computer – and to establish whether he is able to prepare reports with those adjustments in place. It would be good practice for the interviewers to explain the reasons for the additional questions during the interview.
Question: During the course of an interview, a job applicant discloses that he has a visual impairment which is not otherwise obvious. Unprompted, he tells the interview panel that he does not consider that the impairment affects his ability to do the job and asks if there are any questions they would like to ask him about this. A panel member does ask him if he will need any adjustments to carry out a test if he makes it to the next stage of the recruitment process. The panel does not use any disability-related information to decide if his application can proceed further. Is this lawful?
Answer: The panel has before it disability-related information which it ignores in its decision-making process. A panel member asks a legitimate question about adjustments to the recruitment process which falls within an exception. This means that the employer is not in breach of Section 60.
Question: An internal applicant is interviewed for a job. The interview panel includes someone who is aware that this applicant was recently absent from work due to a mental health condition for a number of months.
During the interview, this panel member asks the applicant whether there are any health issues which would affect his ability to cope with the mental pressures of the job. Is this lawful?
Answer: This will be in breach of Section 60 if coping with mental pressure is not an intrinsic function of this particular job.
Question: An employer is interviewing an applicant for a post where coping with mental pressure is an intrinsic function of the job. The employer asks the applicant to give examples of how he has handled a difficult situation or worked to a tight deadline.
Answer: The employer has not breached Section 60 by asking these questions as they are about the applicant’s ability to do the job and are not related to the applicant’s health or disability.
THE POSITION ONCE WORK HAS BEEN OFFERED
Question: An employer refers successful candidates to its own occupational health practitioner who asks them to complete a health questionnaire. This asks questions about mental health which are not necessary to assess the candidate’s ability to do the job. One disabled applicant gives information about a long-standing mental health condition which is well controlled by medication. The employer withdraws the job offer relying on this information.
Answer: Questions about health and disability can be asked after a job offer has been made but the successful candidate would be able to make a claim of disability discrimination if the offer has been withdrawn because of his disability. However, referring successful candidates to an occupational health practitioner can be a positive step as it should provide an opportunity to explore reasonable adjustments with candidates who have a disability.
Bernadette Bruckner is a partner at MSBHelp.com – the online counselling, training and education portal for employers – supporting mental health in the workplace.