Pre-employment health questionnaires and mental health

For employers, the legal implications of mental health at work are difficult to navigate. Even for the most progressive organisations, there is a danger of inadvertent discrimination. Not everyone is forthcoming about mental health conditions and so it can be difficult to know when support or allowances should be made.

Care must also be taken when asking any health-related questions. The Equality Act 2010 specifically prevents an employer from asking any health-related question before the job offer – this was introduced to ensure that job applicants with disabilities, including those with mental health issues, aren’t discriminated against during the recruitment process.

However, some employers will consider that certain health limitations are incompatible with certain roles. Where that is genuinely the case, job offers can be made conditional on the applicant passing a pre-employment medical assessment. However, the test must go no further than is strictly necessary for the role, and any reasonable adjustments for individuals with a disability under the Equality Act must be carefully considered. This might include varying working hours, providing additional support or offering flexibility in how the role is performed, where such changes are viable.

Where a job applicant is clearly unable to perform the role and no reasonable adjustments can be made, this is likely to provide grounds to withdraw a conditional offer of employment, but any employer taking such action would have to ensure that its decision was non-discriminatory and based on a fair consideration of the relevant medical evidence as it relates to the individual, rather than on speculation or assumptions.

More British workers than ever before now report being affected by conditions such as anxiety, depression and stress each year. Not only is mental ill-health reported to be the leading cause of sickness absence, but it is estimated to cost employers an average of £1,035 per employee each year.