implications of not declaring chronic illness to potential employers?

[hatwoman]

another thread on here has got me worried. I have MS - extremely mild, diagnosed in 1999. I had about 6 weeks off then. between 1999-2009 I had something like 5 days off (ms related) and no other days off sick - ie WAY below average. This year I was too ill to work for about a month - although I managed about an hour a day - kept on top of emails and, in any case, am now self-employed. but still my sickness levels are loads below the average

I have never declared my MS on job applications - although one I did recently said MS "automatically" counted as a disability. (meaning, if I had wanted, I could have claimed an automatic interview if I met all the essential criteria). I do not consider myself disabled. I may, one day, become disabled (just like all of us) and I may, one day, become much more ill than I am now (just like all of us).

My question is...should I become ill, with MS, while employed by someone to whom I did not declare my MS, would that effect my rights? I would not lie if asked a direct question, but when asked if I have a disability I will say no. But if that means they could sack me for being ill I might have to reconsider.

No. You don't need to delcare upfront. The protection attaches to disabilities, not notified ones. However, if you were off sick and hadn't told (and didn't then tell) them the underlying reasons (and they had no reason to otherwise know), they wouldn't have to comply with all the special disability protections.

Obviously different if you are asked a direct question and lie, as lying has its own implications.

I would be honest and then no one could criticise you in the future. You will have to look at the wording of any question you are asked. It can only be in your interests to state the truth and any employer would have to comply with the DDA anyway.

Could you find a euphemism for MS to put on the application form - something like "mild demyelination" or "minor sclerotic numbness"? Or mention only the effects MS has on you (eg "optic neuritis", if you have it) That way, if you do become more seriously ill, you can legitimately claim it as a first. Or are you applying for something medical?

The law is changing from 1st October - they are not allowed to ask about health because it could be seen as discriminatory.

Fab. Can you hold off from applying until then?

What Ribena said.

From October employers won't be able to ask applicants for a job about their health, but once an offer is made, they can still ask for a medical questionnaire to be filled in, which may of course ask a direct question.

But on a standard job application where the relevant question would only be to do with disability, if you don't mention it that's fine. Having said that if you have time off sick and particularly if it becomes a problem, you will need to mention it then just as anyone having significant time off sick would be expected to explain why.

thanks all. I can breathe easy again.

I do worry a bit that although, as scurryfunge says, employers have to comply with the DDA, they might not always play wholly by the books. and identifying and proving that they hadn;t would be a battle I wouldn't care to have. so, for the moment at least, I prefer to answer the question "do you consider yourself to have a disability" with the (wholly honest) answer no.

thanks for the reasurrance that this is ok.

A word of caution. An employee who was made redundant tried to sue us for disability discrimination. He had never, ever declared any disability. His case was thrown out.

If you were ever therefore discriminated against because of this illness, if you have not declared it, you will not have a leg to stand on if you have not declared it.

True, but essentially those cases hang on the fact that the employer cannot have discriminated on the employee on grounds of disability in the redundancy if it didn't know about the disability - i.e. it cannot have clouded their thinking.

That is really only relevant if you want to argue down the line that poor performance appraisals, etc, were partially the result of the disability and the disability should have been better taken into account.

OP -It's not that you don't get disability discrimination protetion unless you disclose it. It's more that, if your illness is affecting you at work and you are selected for redundancy or disciplined as a result, you can't use disability discrimination law if the employer doesn't know (and shouldn't have worked out) that you have a disability

"OP -It's not that you don't get disability discrimination protetion unless you disclose it. It's more that, if your illness is affecting you at work and you are selected for redundancy or disciplined as a result, you can't use disability discrimination law if the employer doesn't know (and shouldn't have worked out) that you have a disability"

this is what I was saying.....if they don't know, you do eliminate the possibility of them discriminating against you directly - but you don't then give them the chance to make necessary adaptations!

hatwoman = I know nothing of employment law but feel the need to add thatb hatwoman is a fellrunner doing madamounts of miles at silly altitudes - mad woman :)

Hope it works out for you hat

Hairy, yes, sorry, I was trying to agree and expand on your comment rather than disagree. Sorry if that wasn't clear.