Core guidance: Recruitment
Are you a worker or a job applicant?
This guide calls you a worker or a job applicant if you are working for someone else (who this guide calls your employer) or applying to work for them in a work situation. Most situations are covered, even if you don't have a written contract of employment or if you are a contract worker rather than a worker directly employed by the employer.. 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:
- An employer must not treat you worse than another job applicant just 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’.
If you are a woman who is pregnant or on maternity leave, the test is not whether you are treated worse than someone else, but whether you are treated unfavourably from the time you tell your employer you are pregnant to the end of your maternity leave (which equality law calls the protected period) because of your pregnancy or a related illness or because of maternity leave.
- An employer must not do something which has (or would have) a worse impact on you and on other people who share your particular protected characteristic than on people who do not have that characteristic Unless the employer can show that what they 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 the people who cannot drive because of their disability.
- If you are a disabled person, an employer must not treat you unfavourably because of something connected to your disability where they cannot show that what they are doing is objectively justified. This only applies if an employer knows or could reasonably have been expected to know that you are a disabled person. This is called discrimination arising from disability.
- An employer must not treat you worse than another job applicant because you 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. Direct discrimination cannot be justified, whatever the employer’s motive.
- An employer must not treat you worse than another job applicant because they incorrectly think you 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.
- An employer must not treat you badly or victimise you because you have complained about discrimination or helped someone else complain or have done anything to uphold your 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.
- An employer must not harass you.
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, if you are a disabled person, to make sure that you have the same access, as far as is reasonable, to everything that is involved in getting and doing a job as a non-disabled person, an employer must make reasonable adjustments.
If you ask for information about the job and the application form (if there is one) in an alternative format which you require because you are a disabled person then an employer must provide this, so long as it is a reasonable adjustment – and it is likely to be.
If you need reasonable adjustments to participate in any interview or assessment process, then an employer must make them.
When an employer assesses your suitability for the job, they must take account of any reasonable adjustments which are need to enable you to do the job.
If, after taking reasonable adjustments into account, you would not be the best person for the job, an employer does not have to offer it to you.
Obviously, if you are the best person, the employer should offer you the job. Not offering you the job because you require adjustments would be unlawful discrimination, if those adjustments are reasonable for the employer to make.
We also highlight particular issues in each section of this guide that are especially relevant to you if you are a disabled person.
Except in very restricted circumstances or for very restricted purposes, employers 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 group of successful candidates to be offered a job when a position becomes available, where more than one post is being recruited to (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role).
This includes asking such a question as part of the application process or during an interview. It also includes sending you a questionnaire about your health for you to fill in before you have been offered a job. Questions relating to previous sickness absence are questions that relate to health or disability.
This applies whether or not you are a disabled person.
No-one else can ask these questions on the employer’s behalf either. So an employer cannot refer you to an occupational health practitioner or ask you to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before you have been included 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.
The employer can ask questions once they have made a job offer or included you in a group of successful candidates. At that stage, the employer could make sure that your health or disability would not prevent you from doing the job. But the employer must also consider whether there are reasonable adjustments that would enable you to do the job.
What happens if an employer asks questions about health or disability?
The Equality and Human Rights Commission can take legal action against the employer if they ask job applicants any health- or disability-related questions that are not allowed by equality law. Contact details for the Equality and Human Rights Commission are at the end of this guide.
Also, you can bring a claim against an employer if:
- the employer asked health or disability-related questions of a kind that are not allowed, and
- you believe there has been direct discrimination as a result of the information that you gave (or failed to give) when answering the questions.
In such a claim, the fact that the employer asked these questions will shift the burden of proof, so that it will be for the employer to prove that they did not discriminate against you when, for example, the employer did not offer you the job.
When an employer is allowed to ask questions about health or disability
An employer can ask questions about health or disability when:
- They are asking the questions to find out if you need 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.
- They are asking the questions to find out if you (whether you 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.
- They are asking the questions for monitoring purposes. You can read more about monitoring.
- They want to make sure that any 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. They should make it clear to job applicants that this is why they are asking the question.
- They 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 that this is an occupational requirement. 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 the employer would know you can carry out that function with reasonable adjustments in place, then the employer 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, the employer should be asking you (if you are a disabled person) about your ability to do the job with reasonable adjustments in place. There will 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, an employer should ask you a question about whether you have the relevant skills, qualities or experience to do the job, not about your health or about any disability you 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 you voluntarily disclose information about your health or disability before the employer has made any job offer, the employer should still not get involved in a conversation with you which is outside the exceptions set out above.
The next part of this guide tells you more about how an employer can avoid all the different types of unlawful discrimination in the following situations:
Last Updated: 25 Jul 2010