Can an employer ask about my mental
Yes and No – It’s a
question of timing
There is a lot of confusion about if and
when an employer can seek information about a job applicant's
health, and particularly any disabilities.
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
- 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
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.
The Government Equalities Office and also the
Equality and Human Rights Commission (EHRC) have produced short
guides for workers about the Equality Act 2010.
Equality and Human Rights Commission
The Equality and Human Rights
Commission (EHRC) has produced a series of guides on the Equality
Act 2010. The section for workers includes information on the
recruitment process such as job application forms and cv, the
shortlisting process, interviews and tests.
This document is called
rights to equality when you apply for a job’
and is a comprehensive guide for employees.
The EHRC website also
includes links to
further sources of information and advices
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
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 ‘disability’ test
|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 discrimination protection.
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Should I tell a
prospective employer about my mental ill-health?
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