What questions can you ask potential recruits about their mental health? None.
The equality act section 60 dictates no health questions can be asked prior to job offers being awarded. An employer cannot ask questions about whether any “reasonable adjustments” need to be made to carry out the job itself until after a job offer has been made.
While the intention behind the law is to promote fairness, it is, at best, clumsy. If an employer cannot ask questions, a potential employee might not feel they can voice any they may have about their own mental health disabilities. So there is an e impasse where the employee will often find it difficult to decide if they should or could work for the company.
Employers are not allowed to ask any job applicant about their health or any disability (except in very restricted areas), until the person has been:
- Offered a job either outright or on a conditional basis, or
- Included in a pool of successful candidates to be offered a job when a position becomes available (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role but doesn’t want to recruit separately for each one).
This includes asking such questions as part of the application process or during an interview. It also includes sending them a questionnaire about their health for them to fill in before a job is offered. Questions relating to previous sickness absence count as questions that relate to health or disability.
No-one else can ask these questions on an employer’s behalf either.
These questions are stopped to make sure all job applicants are treated fairly and that they are not ruled out because of health or disability issues.
Questions can be asked once a job offer has been made or a potential candidate is to be included in a group of successful candidates. At that stage, an employer could ask questions to make sure that someone’s health or disability would not prevent them from doing the job.
Consideration would need to be given as to whether there are reasonable adjustments that would enable them to do the job if the answers indicated they would struggle. Rescinding the job offer is absolutely not an option for the employer at that point.
While the UK employer will meet and adapt to all kinds of legislation with good spirit, is it unfair to expect them to be able to readily adjust to a person with a minor or major disability when they simply don’t know how.
How can employers establish when a mental health disability moves from day to day stress to something that needs a qualified counsellor or medical professional to deal with it?
When reasonable adjustments require the skill sets of an employer to stretch to successfully adapting for a person with a serious diagnosed or undiagnosed mental health condition then it is fair to say the average employer has to call in the experts.
The Equalities Act’s guidelines aren’t particularly helpful, and even the most qualified counsellor or psychologists would err on the side of caution in the realm. It is not down to an employer to try to diagnose serious and progressive mental health issues. Whether challenges are new-found or have been with the person for years employers have to leave it to professional psychologists and counsellors.
Not all employers have access to occupational health departments or human resources professionals, but all must comply, says the act.
Mental illness is often kept hidden from employers. Mental health stigma or the fear of being overlooked for a promotion can frighten an employee enough to conceal their challenges. Yet industrial tribunal claims are on the increase and the biggest rise in claims lies in the rise in disability claims relating to mental health issues.
Is an employer considered in breach of discrimination laws against an employee if they should have known or have been reasonably expected to know that an employee needed help?
There is every chance that they would be considered in breach, yes – but how can employers comply when they are not medically trained?
Bernadette Bruckner is a partner at MSBHelp.com – the online counselling, training and education portal for employers – supporting mental health in the workplace.