Answer: Yes and no – It’s a
question of timing
Question: Can an
employer ask about my mental ill-health?
There is a lot of confusion about if and when an employer can seek
information about a job applicant's health, and particularly any
The Equality Act 2010 started to be implemented in October 2010.
The Act brings together nine separate pieces of legislation into
one single Act. This Act simplifies and strengthens the law in
important ways to help tackle discrimination and inequality.
No questions about health or disability before an
outright job offer
An employer cannot legally ask you about your health or any
disability until you have been:
- offered a job either outright or on conditions, 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
They cannot ask questions about your health as part of the
application process, or during an interview. They cannot ask
questions about previous sick leave because these are regarded as
questions that relate to health or disability.
- This applies to everyone, disabled or not, with a history of
mental ill-health or not.
No-one else can ask these questions on the employer’s behalf. So
an employer cannot ask you to see an occupational health
practitioner, or ask you to fill in a questionnaire provided by an
occupational health practitioner, before they have offered you a
job (or before you have been included in a pool of successful
applicants) except in very limited circumstances.
Yes to questions on health and disability once a job
offer has been made
An employer can ask about your health once they have offered you
a job, or included you in a group of successful candidates. At this
stage, the employer can make sure that your health or disability
will not prevent you from doing the job. But the employer must also
consider whether there are reasonable adjustments that would allow
you to do the job.
Equalities Office has produced
short guides and links to
Frequently Asked Questions (FAQ)s
Disability section of the FAQs includes information on the
relationship between the Disability Discrimination Act 1995 and the
Equality Act 2010.
One of the important changes for people with mental ill-health
is that the test of 'disability' has changed to include 'difficulty
carrying out their day-to-day activities'.
For example in the publication, Equality Act 2010: what
do I need to know? A summary guide to your rights, July
2010, it shows how mental ill-health can meet the
You suffer from depression, so it’s very hard for you
to make decisions or even to get up in the morning. You’re
forgetful and you can’t plan ahead. Together, these factors make it
difficult for you to carry out day-to-day activities. You’ve had
several linked periods of depression over the last two years and
the effects of the depression are long-term. So, for the purposes
of the Equality Act, you’re defined as a ‘disabled person’. Before
the Equality Act, you might not have been able to get disability