18th February 2016
Medical conditions can seem like a complicated subject for employers. On the one hand they might affect an employee’s ability to work, or lead to changes and adaptations being required, but on the other hand medical conditions are a personal subject with details that an employee might not want to disclose.
Employers have to know where they stand in order to avoid breaking the law. Additionally, it’s important to be sensitive to the needs of each employee beyond what the law requires. Simply being allowed to ask a certain question doesn’t mean that you definitely should in the way that you might have planned to – tact can go a long way to keeping communication as open as possible; the wording of any question that is asked can make a big difference to how it is treated by the employee that it’s aimed at.
Things that employers can ask about an employee’s medical condition:
- Employers can ask questions that help them to determine if they need to make reasonable adjustments. This might include an adapted working environment, or additional flexibility.
- Questions can be asked for monitoring purposes.
- An employer can ask about a medical condition if it’s thought that the condition might affect the employee’s ability to do their job. For example, the British Armed Forces cannot employ individuals that have had two or more seizures since the age of 6, or have a diagnosis of epilepsy.
Things that employers can’t ask about an employee’s medical condition:
- An employer cannot ask a medical professional for an employee’s medical records, or information about an employee’s health, without permission from the employee. Even if the employee approves this, they have a right to check the records before they’re passed on.
- Employers cannot request that an employee discloses information about any health conditions that arise during employment. Employees might choose to volunteer information, and if they do then the employer is required to make reasonable adjustments to support the employee in their work.
- If an employer is making reasonable adjustments for an employee then they can seek advice from the employee’s GP, but again they cannot do this without the employee’s consent.
What about the recruitment stage?
During recruitment, companies are not allowed to ask any questions regarding health or disability. This includes questions about the number of sick days taken at the applicant’s previous place of work.
Exceptions are made for questions that determine the applicant’s ability to take part in any assessments, and to highlight any adjustments that the applicant might require to have a fair shot at the assessment. There are also exceptions made for questions that determine whether or not an applicant can do a part of the job that is absolutely essential – for example, questions that determine whether applicants can climb or do heavy lifting.
If a company can also show that their questions are for diversity monitoring, or to aid positive action (improving the rate of employment for those with disabilities or medical conditions), then they are able to ask questions for these purposes.
The ‘recruitment stage’ covers everything up until the point where a job offer is made. After the offer has been made to the applicant, the rules for employees apply.
What protection is available for the employer and the employee?
The employee is protected by law when it comes to asking questions about medical conditions. The burden of proof is on the employer, who must be able to show that they had a valid reason for asking a question.
If an employee believes that they were asked a question for purposes of discrimination or as an invasion of privacy, then the employee can seek legal action.
The employer and employee can both work to protect themselves. Employers should take extra care only to ask questions that they can justify if required, whilst employees should take extra care only to answer the questions that are asked. It is easy to accidentally volunteer more information than necessary.
The Equality Act 2010, which protects against discrimination in the workplace, ensures that individuals with disabilities and medical conditions cannot be treated unfairly at work.
Who should an employee talk to about a medical condition?
The best people for an employee to speak to are direct managers (such as line managers), occupational health advisors (if available), trade unions (if there are concerns about treatment) and human resources managers, who may be able to provide advice and also to offer support with any adjustments, sick days and flexible working hours that may be needed.
Whilst employees have the option to keep new medical conditions hidden, it can be extremely difficult to do so. It might actually be beneficial for the employee to volunteer that information. An employee can receive warnings and reprimands for continued lateness or poor performance, and employment contracts can be dissolved following long-term sickness leave (to be clear on the definition of this, legal advice can be sought), whilst additional rights and support can be afforded to those that have been open about their health.
With studies showing that approximately 30% of employees would feel scared to tell an employer about a medical condition, for fear of discrimination or losing their job, it is particularly important that employers follow the law. It’s also vital that any medical information is stored securely in a locked filing cabinet or in trustworthy HR software, where it cannot be accessed by anyone other than those that need to know the details.
Employers also have a right to ask for medical certificates and proof of any condition, including fit notes if necessary, which should also be kept in a secure place.