Section 60 of the Equality Act 2010 makes it unlawful for employers to ask about an applicant’s health or disability before they have been offered the job, or before including them in a pool of successful candidates to be offered a role at a later date, except in specified situations.

The Equality and Human Rights Commission (EHRC) has pointed out that this is to prevent candidates from having their applications screened out before being given the opportunity to demonstrate that they have the relevant skills and abilities to do the job.

It was speaking after the launch of an investigation into Elite Careplus Ltd which is suspected of breaching s.60 by asking health questions on its job application/registration form without having informed the EHRC that a statutory provision exists which would require it to ask such questions.

The Commission’s Chief Executive, Rebecca Hilsenrath, said: “'If you’re disabled, we know you face additional barriers in the work place and significant exclusion from the labour market. If you see a job that you are qualified for, you shouldn’t be put off by being asked detailed and unnecessary questions about your health”.

She explained that the EHRC had received evidence that Elite Careplus was asking pre-employment health questions during its recruitment and registration process and an investigation would now be carried out under s.20 of the Equality Act 2006.

“We need to challenge discrimination to ensure that everyone can realise their right to work”, Ms Hilsenrath concluded.

Comment by Peninsula Associate Director Kate Palmer

This reminds employers that equality law protects individuals from discrimination during the recruitment stage as well as throughout their employment.

If an individual is not given fair opportunity during the application process as a result of their disability, this can result in costly discrimination claims being brought against a company alongside a potential damage to its overall reputation.

While employers can ask questions regarding a candidate’s health at this stage they should proceed with caution and be sure that they are permitted to do so under equality law. To this end, it is usually advisable to wait until after an offer of employment has been made.

Last reviewed 3 July 2019