Interviewing someone for a vacancy can be daunting. The interviewer can sometimes be as nervous as the candidate. What about discrimination?
Your natural reaction is to ask the candidate lots of questions. And equally, if you find out something that doesn’t sit well with you, you may wish to withdraw the job offer. This brief article concentrates on candidates with disabilities but it can be a minefield of other areas too.
It’s also tricky knowing what you can and can’t ask. We have a page all about interviews here.
What if the applicant has a previous bad history of sickness absence or has any underlying health issues that will lead to absences and become disruptive to your business?
Can I ask applicants about their health in a job interview?
The law is very strict on asking health or disability questions during the recruitment process.
As a general principle, an employer cannot ask a job applicant any questions about their health or disability until they have been offered a job. In very specific circumstances, you can ask before offer stage. For example, to determine whether the applicant can take part in an assessment to establish their suitability for the job or to find out whether a job applicant can perform a function that is fundamental to the role.
It is also bad practice to ask someone how many sick days they took in their last role.
Can I withdraw a job offer if I find out someone has health issues?
The law differs according to whether you have made an unconditional job offer or a conditional job offer.
Conditional job offers
A conditional job offer can be withdrawn if the applicant does not fulfil all the conditions of the offer. The conditions could include satisfactory references, a criminal record check, a qualifications check or a health check. However, if the applicant does meet all the conditions and you decide to withdraw the offer, they can take legal action against you for breach of contract.
Be caution of withdrawing the offer for a discriminatory reason.
If you have made a conditional offer but discover their health condition constitutes a disability, you must be very careful when deciding to withdraw a job offer. Withdrawing a job offer simply because the medical check shows the applicant has a disability is likely to constitute direct discrimination.
You should try and find out more about their condition, how it affects the individual and their ability to do their job. You have an obligation to consider what reasonable adjustments are necessary. An employer’s failure to do this is also a type of discrimination.
Unconditional job offers
Once the applicant has accepted an unconditional job offer, there is a legally binding contract of employment between you and the applicant.
If you change your mind, they can take legal action against you for ‘breach of contract’ and claim damages – usually to reflect their notice period – the time for which they would have been employed before you would have been permitted to dismiss them. In cases of employees in senior or managerial positions, this could be equivalent to three or six months’ pay.
However, if you withdraw for a discriminatory reason, for example on the basis of their disability, there would be other losses the applicant could claim too.
What is a “disability”?
The definition of “disability” under the Equality Act is quite broad.
To be classified as disabled, the worker needs to show they suffer from a long term (12 months or more) physical or mental impairment which has a substantial impact on their ability to carry out day-to-day activities.
Remember, disabled workers have certain additional rights. They must not be treated less favourably because of a disability or receive unfavourable treatment because of something arising out of their disability. Employers must also make reasonable adjustments for the worker.
What are Reasonable Adjustments?
What can be considered as “reasonable adjustment” can be wide-ranging.
Examples include:
- doing things another way
- making physical changes
- changing their equipment
- allowing employees who become disabled to make a phased return to work.