Disclosure of health conditions

There are special rules governing what employers (and recruitment agencies) are allowed to ask about health conditions before offering a job, which are enforced by the Equality and Human Rights Commission (EHRC). Under section 60, EA 10, an employer must not ask about a job applicant’s health, including any disability, or their sickness absence record, before making an offer. There are a few narrow exceptions, for example, checking whether a candidate needs reasonable adjustments to the application process. For more general information about the ban, see LRD’s annual employment guide, Law at Work (www.lrdpublications.org.uk/lawatwork).

It is not unlawful to make a job offer conditional on a successful health check, including mental health, but it would be disability discrimination to withdraw an offer of employment for a reason related to a candidate’s disability if reasonable adjustments could be made to overcome it (see, for example, Pnaiser v NHS England and Coventry [2015] UKEAT/0137/15/LA).

Health information is “special category personal data” protected by the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. In particular, it must be kept confidential by the employer and only disclosed with the individual’s clear consent. For more information, see the LRD booklet: The General Data Protection Regulation — a practical guide for trade unionists (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1915).