Can employers ask their employees if they are disabled or have a medical condition? HR consultant Lyndsey McLaughlin outlines what employers should be aware of when it comes to discussing an employee's disability or medical condition.
When it comes to hiring an employee and determining whether they can carry out the requirements of a role, it can seem like a bit of a minefield. You cannot discriminate against a candidate because they have a disability, but you also don’t want to hire someone that is not able to undertake the requirements of the role. It is important to be mindful when asking questions relating to disabilities and medical conditions in the workplace.
Should you be aware of disabilities during the recruitment process?
The Equality Act 2010 was brought into force to protect employees and job seekers from discrimination. The act makes it illegal to discriminate against, or unfairly treat individuals based on a protected characteristic; for example, disability, age, gender, or sexual orientation.
You can ask a candidate about any potential disabilities to make reasonable adjustments for them; however, you should not use a disability as a means of not hiring someone unless the candidate is not able to perform the duties of the role. For instance, if a candidate is in a wheelchair, you may need to adjust the office. However, if they are office-based, there is no reason why they should not be considered for the role.
Learn more: How to prevent discrimination in your business
What about disabilities and current employees?
Some people won’t label themselves as having a disability, although they would still be protected under the Equality Act 2010. For instance, they may suffer from depression and, although you might not categorise this as a disability, it is protected under the Act. In the UK, a medical questionnaire for employees is standard and it can help you identify any employees that may have a disability.
If you have an employee that you suspect has a disability, you should speak to them in a sensitive manner. It would not be right, for instance, to outright ask them: ‘Do you have a disability?’ But you can ask about this in a more sensitive manner instead. For example, if you notice they seem to be feeling negative and unhappy, you should speak to them tentatively and ask if there’s anything you can do to help. Of course, if they are physically struggling with the job – for example, if they seem to have back issues and they are lifting heavy loads – you should try and adjust the role for them.
Can you ask employees for proof of disability?
Asking for proof of disability can be difficult. The last thing you want is to make your employee feel uncomfortable. You might ask for proof of a disability if there is a reason for it. For instance, if an employee is consistently calling in sick due to a disability that you weren’t aware of before you hired them, you might need to ask for proof. If a disability is obvious though – for instance, if your employee is in a wheelchair – it would not be appropriate to ask for proof of disability.
Track absences and upload relevant documentation for employees with an online absence management system.
How to manage employees with medical conditions
It can be challenging to deal with employees suffering from medical conditions, especially asking for proof of disability, but it is important that you manage them correctly. It can be even more difficult for SMEs, that may not have HR support to offer advice. As an employer, you have a responsibility to take medical conditions seriously. If you have an employee with medical conditions, these are some steps you can take to help support them.
- Flexible working – provide flexible working options such as working from home 50% of the week - this can help reduce sickness and give the employee the opportunity to work in their own environment
- Regular breaks – if an employee is finding it difficult to cope, you can offer extra breaks to help accommodate their needs
- Adapt the environment – you may need to make adaptations to the working environment to help support your employees
- Occupational health – if the disability is seriously affecting their ability to work, you may need to contact occupational health for some extra advice and assistance
These can be difficult conversations to have, especially with employees that may not be ready to face their disability. It is important to handle it with as much care and sensitivity as possible, while also keeping your business needs in mind. If an employee is consistently absent from work, it may be necessary to ask them for an employee medical declaration from their doctor. It may be that they are no longer able to carry out their role, and in which case, adaptations or a change in the role may be necessary.
Always ensure that you are compliant with the Equality Act 2010, and that you base any decisions on a person’s ability, rather than their characteristics.
Read more from the myhrtoolkit blog
How a phased return to work helps businesses with staff absence
The Bradford Factor and disability: managing absence flexibly!
Written by Lyndsey McLaughlin
Lyndsey McLaughlin is a CIPD qualified HR consultant and recruitment professional who specialises in HR advice and writing about a range of business and staff management topics for employers and managers.