Core guidance: Recruitment
Are you an employer?
This guide calls you an employer if you are the person making decisions about what happens in a work situation. Most situations are covered, even if you don’t give your worker a written contract of employment or if they are a contract worker rather than a worker directly employed by you. Recruiting people to other positions like trainees, apprentices and business partners is also covered. Sometimes, equality law only applies to particular types of worker, such as employees, and we make it clear if this is the case.
Make sure you know what is meant by:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation.
These are known as protected characteristics.
Unlawful discrimination can take a number of different forms:
- You must not treat a job applicant worse than another job applicant because of a protected characteristic (this is called direct discrimination).
An employer does not interview a job applicant because of the applicant’s ethnic background.
An employer says in a job advert ‘this job is unsuitable for disabled people’.
- You must not do something which has (or would have) a worse impact on them and other people who share a particular protected characteristic than on people who do not have that characteristic. Unless you can show that what you have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.
A job involves travelling to lots of different places to see clients. An employer says that, to get the job, the successful applicant has to be able to drive. This may stop some disabled people applying if they cannot drive. But there may be other perfectly good ways of getting from one appointment to another, which disabled people who cannot themselves drive could use. So the employer needs to show that a requirement to be able to drive is objectively justified, or they may be discriminating unlawfully against people who cannot drive because of their disability.
You must not treat a disabled job applicant unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified. This only applies if you know or could reasonably have been expected to know that the applicant is a disabled person. This is called discrimination arising from disability.
An employer tells a visually impaired person who uses an assistance dog that they are unsuitable for a job because the employer is nervous of dogs and would not allow it in the office. Unless the employer can objectively justify what they have done, this is likely to be discrimination arising from disability. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something connected to their disability (their use of an assistance dog). It may also be a failure to make a reasonable adjustment.
- You must not treat a person worse than another job applicant because they are associated with a person who has a protected characteristic.
An employer does not give someone the job, even though they are the best-qualified person, just because the applicant tells the employer they have a disabled partner. This is probably direct discrimination because of disability by association. Direct discrimination cannot be justified, whatever the employer’s motive.
- You must not treat a job applicant worse than another job applicant because you incorrectly think they have a protected characteristic (perception).
An employer does not give an applicant the job, even though they are the best-qualified person, because the employer incorrectly thinks the applicant is gay. This is still direct discrimination because of sexual orientation.
- You must not treat a job applicant badly or victimise them because they have complained about discrimination or helped someone else complain or have done anything to uphold their own or someone else’s equality law rights.
An employer does not shortlist a person for interview, even though they are well-qualified for the job, because last year the job applicant said they thought the employer had discriminated against them in not shortlisting them for another job.
- You must not harass a job applicant.
An employer makes a job applicant feel humiliated by telling jokes about their religion or belief during the interview. This may amount to harassment.
In addition, to make sure that a disabled person has the same access, as far as is reasonable, to everything that is involved in getting and doing a job as a non-disabled person, you must make reasonable adjustments.
If an applicant asks for information about the job and the application form (if there is one) in an alternative format which they require because they are a disabled person then you must provide this, so long as it is a reasonable adjustment – and it is likely to be.
If an applicant needs reasonable adjustments to participate in any interview or assessment process, then you must make them.
When you assess a disabled job applicant’s suitability for the job, you must take account of any reasonable adjustments which are needed to enable them to do the job.
If, after taking reasonable adjustments into account, the disabled applicant they would not be the best person for the job, you do not have to offer it to them.
But if they would be the best person with the reasonable adjustments in place, you must offer them the job. In any event, it would make sense for you to do this, as you want the best person for the job.
We also highlight particular issues in each section of this guide that you may need to think about when you are recruiting disabled people.
Except in very restricted circumstances or for very restricted purposes, you are not allowed to ask any job applicant about their health or any disability until the person has been:
- offered a job either outright or on a conditional basis, or
- included in a pool of successful candidates to be offered a job when a position becomes available (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role but doesn't want to recruit separately for each one).
This includes asking such a question as part of the application process or during an interview. It also includes sending them a questionnaire about their health for them to fill in before you have offered them a job. Questions relating to previous sickness absence count as questions that relate to health or disability.
No-one else can ask these questions on your behalf either. So you cannot refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before inclusion in a pool of successful applicants) except in very limited circumstances, which are explained next.
The point of stopping employers asking questions about health or disability is to make sure that all job applicants are looked at properly to see if they can do the job in question, and not ruled out just because of issues related to or arising from their health or disability, such as sickness absence, which may well say nothing about whether they can do the job now.
You can ask questions once you have made a job offer or included someone in a group of successful candidates. At that stage, you could make sure that someone’s health or disability would not prevent them from doing the job. But you must consider whether there are reasonable adjustments that would enable them to do the job.
The Equality and Human Rights Commission can take legal action against you if you ask job applicants any health- or disability-related questions that are not allowed by equality law.
Also, a disabled job applicant can bring a claim against you if:
- you asked health or disability-related questions of a kind that are not allowed, and
- they believe there has been unlawful discrimination as a result of the information that they gave (or failed to give) when answering such questions.
In such a claim, the fact that you asked these questions will shift the burden of proof, so that it will be for you to prove that you did not discriminate against the worker when, for example, you did not offer them the job.
You can ask questions about health or disability when:
- You are asking the questions to find out if any applicant needs reasonable adjustments for the recruitment process, such as for an assessment or an interview.
An application form states: ‘Please contact us if you need the application form in an alternative format or if you need any adjustments for the interview’. This is allowed.
- You are asking the questions to find out if a person (whether they are a disabled person or not) can take part in an assessment as part of the recruitment process, including questions about reasonable adjustments for this purpose.
An employer is recruiting play workers for an outdoor activity centre and wants to hold a practical test for applicants as part of the recruitment process. It asks a question about health in order to ensure that applicants who are not able to undertake the test (for example. because they are pregnant or have an injury) are not required to take the test. This is allowed.
- You are asking the questions for monitoring purposes to check the diversity of applicants. You can read more about monitoring.
- You want to make sure that an applicant who is a disabled person can benefit from any measures aimed at improving disabled people’s employment rates. For example, the guaranteed interview scheme. Make it clear to job applicants that this is why you are asking the question.
- You are asking the question because having a specific impairment is an occupational requirement for a particular job.
An employer wants to recruit a Deafblind project worker who has personal experience of Deafblindness. This is an occupational requirement of the job and the job advert states this. The employer can ask on the application form or at interview about the applicant's disability.
- Where the questions relate to a requirement to vet applicants for the purposes of national security.
- Where the question relates to a person's ability to carry out a function that is intrinsic (or absolutely fundamental) to that job. Where a health- or disability-related question would mean you would know if a person can carry out that function with reasonable adjustments in place, then you can ask the question.
A construction company is recruiting scaffolders. The company can ask about health or disability on the application form or at interview if the questions relate specifically to an applicant's ability to climb ladders and scaffolding to a significant height. The ability to climb ladders and scaffolding is a function that is intrinsic or fundamental to the job.
In practice, even if a function is intrinsic to the job, you should ask a question about a disabled person's ability to do the job with reasonable adjustments in place. There will therefore be very few situations where a question about a person's health or disability needs to be asked.
Most of the time, whether on an application form or during an interview, you can ask a question about whether someone has the relevant skills, qualities or experience to do the job, not about their health or about any disability they may have.
An employer is recruiting a person as a cycle courier. They ask applicants to send in a CV setting out their relevant experience and a covering letter saying why they would be suitable for the job. The employer will score candidates on their experience of and enthusiasm for cycling. It is not necessary to ask applicants questions about health or disability. If the employer considers a health check is necessary, for example, for insurance purposes, this can be carried out once an applicant has been offered the job, and the job offer can be made conditional on the health check.
If a disabled job applicant voluntarily discloses information about their health or disability before you have made any job offer, do not get drawn into a conversation which is outside the exceptions set out above. For example, you could ask a follow-up question to find out what reasonable adjustments were necessary to enable the candidate to carry out an intrinsic function of the job. You should explain to the candidate that it is not appropriate or permitted for you to get into a general conversation about their disability or health record, but you can discuss this particular aspect.
Last Updated: 21 Jan 2015