Sickness details and application forms

[rosenylund]

I have a query - is it legal to ask about sickness on application forms ? I thought that the equality act made this unlawful, but not sure - that employer's are not supposed to ask until you are offered a role about how much sickness you have had and the reasons for it.

I just wondered if anyone could clarify this - the application form specifically asked how many instances of sickness in the last 2 years and what these were for.

[prh47bridge]

In general it is illegal for an employer to ask an applicant about their health or disability until they have been offered a job. Such questions can be asked in certain circumstances, however, so it depends why they are asking. See here for a guide.

[rosenylund]

Thank you, I feel sick to my stomach - I shouldn't have answered it. I've been off sick with depression in the last 2 years which is what I answered. I didn't get an interview, and can't help worrying this is going to affect any job I go for from now on.

[SmokingGun]

OP I think you have left the company name in your last post, sorry I can't offer advise but thought you might want to get MN to remove

[rosenylund]

I know I've reported! what an eejit i am

[rosenylund]

Right trying again...

Hello again
Sorry to raise this again, but I've been trying to get a straight answer from a number of sources including ACAS. I'm still waiting for my union to come back to me.

Would anyone be able to comment based on the questions actually asked in the application?

So as not to drip feed, I answered honestly that I had had 3 months in the last 2 years due to depression, and that I am on medication for this. I can't help but thinking I may have got an interview if I had left this section blank, or they had not asked me. I'm desperately searching for jobs as the moment and am terrified that having depression is going to stop me.

I'm not looking to get anything/go anywhere - if I get a straight answer from the union I may email to make the company aware those questions are no longer legal. I've applied for lots of jobs in the last six months and none have asked any medical questions. I guess I'm concerned as I'm feeling like I'll never get another job at the moment because of this stigma I have now as having suffered with poor mental health.

My understanding is that as I've been affected and treated for depression for over 12 months (15 years ) that it's now classed as a disability.

Obviously I won't be working there anyway...
Sigh.
_
Do you have any significant health problems which may affect the way you do this job?

 Yes No

If Yes please give details and let us know of any adjustments to the workplace you may require. ??will make reasonable adjustments to assist you.

How many times have you been absent from work due to illness in the last 2 years?

How many days have you been absent from work due to illness in the last 2 years?
Please give reasons for absences.

Are you currently receiving medical treatment?
If Yes please give details.

[DrE678]

To the best of my understanding they can't ask those specific questions anymore. It looks like an old application that hasn't been updated since the law change. Yes your depression would be classed as a disability.

[rosenylund]

Yes I thought so too re: old application form, very small organisation which doesn't often advertise so would explain this.

[MavisCrouton]

I'm a union rep. There is a ban on pre-employment questions to job applicants about their health, including whether they have a disability and their previous sickness absence record, before offering a role (section 60 of the Equality Act 2010).

There are some exceptions:

• asking about disability before an interview to organise reasonable adjustments at the interview is permitted
  
• asking whether an applicant can carry out a function intrinsic to the role once reasonable adjustments have been made is permitted
  
• anonymised questions for diversity monitoring are permitted although the results should not be made available to the person doing the selecting.
  

In general this mean that an employer must not ask about a job applicant's health before offering employment, on either a conditional or unconditional basis. The ban extends to third parties such as assessment centres, recruitment agencies and referees. Once a job offer has been made, it is no longer unlawful to ask questions about health, but an employer who asks health related questions after making an offer, eg using a health questionnaire, and then withdraws that offer when the answers reveal a disability, risks a claim for disability discrimination. For a recent example see Pnaiser v NHS England (2015) UK EAT 0137/15.

The Equality & Human Rights Commission is responsible for enforcing the ban. There is statutory guidance that you may find helpful on the EHRC website.

[rosenylund]

Thank you, that's really helpful.

[daisychain01]

OP I wouldn't want to work for a company whose basic interview forms are 6 years out of compliance with current employment law! If they can't even get that bit right, then heaven only knows what other employment law they are flouting or ignorant about.

Good luck finding a job.

[TallulahTheTiger]

Just checking it's not the Nhs in Scotland?( Can I ask that?) if do theres a bit on the form that says don't answer this bit as updating forms.

[TallulahTheTiger]

Really should update forms though!

[PurpleToeNails]

Interestingly I decided not to pay for a job with the local CAB as they included these questions on their forms. Speechless that they're not up to date...

[Nicketynac]

I work in the NHS and application forms go straight to HR. They remove a whole section which includes (or included, if they are being updated as above post) sickness, disability, criminal record, ethnicity, sexual orientation etc. The forms given to people selecting for interviews don't even have the applicants name on them.

[rosenylund]

Hello all - no not in Scotland nor NHS (thankfully - would hope they would be better).

I agree they are totally out of date. Where I work, we don't ask these questions and like you Nicket the diversity/ethnicity section goes to HR so is not seen by the interview.

I agree I am better off, and I admit I was very surprised not to get an interview - blowing my own trumpet a tiny bit I felt I hit the person specs etc. accurately. I submitted near the deadline (which was 4pm) on a Friday, letter on Monday saying sorry no interview so it played on my mind wondering if my being open on the app. made a difference .

I am considering contacting them and making them aware, as there should be a spotlight on companies like this for not keeping up to date with their legal duties. Otherwise it will just keep happening.

[rosenylund]

Just thought I would update. I got in touch with the Equality & Human Rights Commission, who have agreed it does not appear to be a legal use of those questions. They have asked me to send all the paperwork and emails including the letter advising me I hadn't been shortlisted. So we'll see what comes of it. They were very helpful.

[Arkengarthdale]

Some of this answers my post today - thanks all. How do you get a job when you have depression?

[rosenylund]

I think the thing is employer's shouldn't be asking at application stage; if they ask when they've offered the job then there is some protection. I'm pursuing this as it could affect others and has definitely knocked my confidence. I've had a few interviews in the last few months and it's never come up.

I'm more worried now as I'm signed off with depression/stress, not sure how employers will feel about my lengthy sickness - but it's my current job that has made me ill this time, specific things about it - not that I'm unable to work in another job. I'm sad about it, love my job and my team but can't continue in the present climate and can't see myself going back.

[rosenylund]

I feel like such an utter twat at the moment, I've let everyone down - I only went back in Jan after a 3 month period off and now I'm off again. I feel like I've given up and let them win. My whole future is in jeopardy now - work, home etc. Ugh!