Recruitment can feel like a practical process: write the advert, review the CVs, interview the strongest candidates and choose the person who seems right for the role.
But there is one area where employers can get into difficulty very quickly: asking questions about health or disability too early.
For many employers, the intention is not discriminatory. They may be trying to understand whether someone can do the job, whether adjustments are needed, or whether there could be attendance issues in the future. The problem is that the Equality Act 2010 places clear restrictions on asking health and disability questions before a job offer has been made, except in specific circumstances. The Equality and Human Rights Commission explains that employers must not ask about an applicant’s health or disability before offering the job, or before placing them in a pool of successful candidates, unless a legal exception applies.
That means a well-meaning question on an application form, in an interview or during an informal conversation can still create risk.
Why health questions are restricted
The purpose of the restriction is to help ensure candidates are assessed on whether they can do the job, rather than being filtered out because of assumptions about health, disability, absence or capability.
This matters because health-related information can easily influence decisions, even unintentionally.
For example, if a candidate mentions a medical condition before a decision has been made, the employer may start wondering whether they will need more time off, whether adjustments will be difficult, or whether the role will become harder to manage. Even if the candidate is perfectly capable of doing the job, the information may affect how they are viewed.
The law is designed to stop that happening.
Employers should focus first on skills, experience, qualifications, values, attitude and ability to perform the role. Health and disability information should only be requested at the right stage, for the right reason, and in the right way.
Questions employers should usually avoid before making an offer
As a general rule, employers should not ask broad health or disability questions before offering someone the job.
This includes questions such as:
- Do you have any medical conditions?
- How many sick days did you take in your last job?
- Have you ever had mental health problems?
- Are you disabled?
- Do you take any medication?
- Do you have any health issues that could affect your attendance?
- Have you had any operations or long-term illnesses?
These questions may seem practical from an employer’s point of view, but they can be risky if asked too early.
The same applies to medical questionnaires. Asking all applicants to complete a health questionnaire before shortlisting or interview is likely to cause problems unless it falls within a permitted exception.
Employers should also be careful with informal conversations. A casual comment such as “You look like you’re limping, is everything okay?” or “This role can be stressful, you’ve never had anxiety or anything like that, have you?” can create the same risk as a formal interview question.
What employers can ask
This does not mean employers can never ask anything linked to health, disability or adjustments.
There are situations where questions are allowed.
Employers can ask whether a candidate needs reasonable adjustments for the recruitment process. For example, they may ask whether the candidate needs any adjustments for an interview, test, presentation or assessment. Gov.uk guidance confirms that employers can ask whether a candidate needs an adjustment to the recruitment process so they can be considered for the job.
This is different from asking general questions about someone’s health.
A safer question would be:
“Do you need any reasonable adjustments for the interview or assessment process?”
That question is focused on access to the recruitment process, not whether the person has a health condition.
Employers may also ask questions where they need to establish whether the applicant can carry out a function that is essential to the role. EHRC guidance explains that health or disability questions may be permitted in specific circumstances, including where they relate to an intrinsic function of the job.
For example, if a role genuinely requires heavy manual lifting, it may be reasonable to ask whether the applicant can carry out that specific requirement, with or without reasonable adjustments. The question should be about the task, not the diagnosis.
A better approach would be:
“This role involves regular lifting of items up to [weight] as an essential part of the job. Are you able to carry out this task, with or without reasonable adjustments?”
That is very different from:
“Do you have any back problems?”
The first question focuses on the role requirement. The second focuses on the person’s medical history.
After a job offer has been made
Once a job offer has been made, employers have more room to ask relevant health questions, especially where they need to understand adjustments, fitness for work, health and safety requirements or occupational health advice.
However, even then, questions should be relevant and proportionate.
Employers should avoid collecting more information than they need. They should also be clear about why the information is being requested, how it will be used and who will have access to it.
If a health questionnaire is used after offer, it should be linked to the role and handled carefully. Managers should not be given unnecessary medical detail. Where medical information is needed, it should usually be managed through appropriate HR processes or occupational health advice.
The key point is that a conditional offer should not be withdrawn lightly because of health information. If concerns arise after offer, the employer should usually consider medical evidence, reasonable adjustments and whether the individual can perform the role with support.
Reasonable adjustments during recruitment
Reasonable adjustments are not just something to think about once someone is employed.
They also apply during recruitment.
Acas describes reasonable adjustments as changes an employer makes to remove or reduce a disadvantage related to someone’s disability. In recruitment, that could include changing the interview location, allowing extra time for a written test, providing questions in advance where appropriate, offering an accessible format, or adjusting the way an assessment is carried out.
The important point is that adjustments are there to give the candidate fair access to the process. They are not about giving someone an unfair advantage.
Employers should make it easy for candidates to request adjustments without feeling that the request will count against them. That might mean adding a simple line to interview invitations or application processes, such as:
“If you need any reasonable adjustments to take part in the recruitment process, please let us know.”
That wording is simple, practical and much safer than asking for broad health information.
Application forms and interview notes need checking
Many recruitment risks sit in the documents employers use every day.
Old application forms may still include questions about sickness absence, disability, medication or medical history. Interview templates may include inappropriate prompts. Managers may use their own questions rather than a standardised format.
These are the sorts of things that often go unnoticed until a candidate complains or a claim is made.
Employers should review:
- application forms
- equal opportunities forms
- interview question templates
- interview scoring sheets
- job descriptions
- job adverts
- offer letters
- medical questionnaires
- recruitment emails
The aim is not to make recruitment robotic. It is to make sure the process is fair, consistent and defensible.
If health or disability information is collected for equal opportunities monitoring, it should be kept separate from the recruitment decision. It should not be used by managers to decide whether someone should progress.
Managers need clear boundaries
In many SMEs, recruitment is handled by business owners or line managers rather than a dedicated HR team. That is perfectly normal, but it increases the need for clear guidance.
Managers need to know what they can and cannot ask.
They may believe they are being sensible by asking about health, especially if a role is physically demanding, stressful or safety-critical. But unless the question is carefully framed and legally permitted, it can create risk.
A useful rule of thumb is this:
Before offer, focus on the role, not the medical history.
Ask whether the candidate can carry out the essential requirements of the job, with or without reasonable adjustments. Do not ask broad questions about conditions, diagnoses, sickness absence or medication.
If more information is genuinely needed, take advice before asking.
The risk of getting it wrong
Asking unlawful health or disability questions can create several problems for employers.
It may lead to a discrimination complaint. It may undermine the fairness of the recruitment process. It may make it harder for the employer to defend a decision not to appoint someone. It may also damage trust with candidates before the employment relationship has even begun.
The Equality and Human Rights Commission has previously taken action where employers used pre-employment health questions inappropriately during recruitment.
For SMEs, this is not about making recruitment more complicated. It is about making sure the process does not accidentally expose the business to avoidable risk.
A safer approach for employers
A safer recruitment process should include:
- clear job descriptions that identify the real requirements of the role
- interview questions focused on skills, experience and ability
- a simple reasonable adjustments question for the recruitment process
- separate equal opportunities monitoring where used
- no general health questions before offer
- careful use of post-offer health questions where relevant
- manager training on what not to ask
- clear records showing why recruitment decisions were made
Health questions in recruitment are not always banned, but they are restricted. The safest employers are the ones who know the difference.
A careful process protects candidates from unfair treatment and protects the business from unnecessary risk. It also helps employers make better recruitment decisions.