Allied Health Professions: disclosure guidance

13 Annex A- Frequently Asked Questions

Disclosure Of Mental Health Conditions

When it is lawful to ask questions about health and disability?

Employers can ask questions:

• To establish if the applicant needs reasonable adjustments for any aspect of the interview or assessment process;
• If it is part of the equal opportunities monitoring process;
• If it is to allow the applicant to benefit from a positive action measure e.g. access to guaranteed interview scheme if they meet essential criteria;
• To vet applicants for purposes of national security;
• If the question relates to a function that is intrinsic to that job – this includes a question asking whether the person can carry out the job with reasonable adjustments;
• To establish reasonable adjustments needed to carry out functions intrinsic to job.

What should the employer do if disclosure raises issues about capacity to do the job?

The employer should consider whether the applicant has a disability in terms of the Equality Act. They should then identify in what way they think the condition may impact on the ability of the applicant to do the job. If there is no impact then there are no grounds for withdrawing the offer without this being discrimination.

The employer should consider reasonable adjustments which can be made to alleviate barriers if they think the employee cannot carry out parts of the job. Adjustments should be explored and agreed.

What can be done if the employer is in breach of Section 60?

If a job was not offered after a disclosure was made, the reasons for the rejection could be investigated further. The individual can make a request for written reasons/ feedback as to why they were not successful. If there is sufficient evidence of discrimination then the client could seek independent legal advice as to whether to pursue a claim via an employment tribunal.

To note: the tribunal cannot consider complaints relating to disability or health enquiries under section 60(1) of the Equality Act 2010, where an employer makes health or disability-related enquiry falling out with the permitted situations; only the Equality and Human Rights Commission can enforce such a breach of the law via, in Scotland, the sheriff court.

The Employment Tribunal can, however, hear a complaint where an individual is not offered a job as a result of responding to an impermissible question about health or disability. In this case a person must bring a claim within 3 months from the date of alleged discrimination. The tribunal has the right to admit late claims if it is believed to be "just and equitable" in the circumstances. If a job offer is withdrawn because of disclosure the individual can write and ask for justification as to why.