Mental health can be a difficult subject for employers and candidates to bring up and discuss although it’s much more open now than ever before. Many organisations are afraid of legal repercussions if they ask too soon or fail to ask at all.
Is it legal to ask employees about their mental health during a job interview?
Generally, no, this would not be legal.
Employers should make all efforts to avoid any questions relating to health at the interview stage, particularly in relation to mental health. The main reason being if you do ask the question and the candidate discloses that they have an issue, there is then a very high risk that if that candidate is then rejected for the role, they will link that to the disclosure of their health condition and make a claim for discrimination.
Are applicants legally obliged to disclose mental illness during an interview?
No, a candidate does not have to mention any medical condition during a job interview. Even if asked, there is no obligation to answer the question.
Are they legally obliged to then disclose it if they are offered the job?
An organised employer will provide a health questionnaire once a job offer has been made and accepted. The purpose of this form is to see if the incoming employee suffers from any medical condition(s) which could affect their ability to perform the role, and which could warrant adjustments being made to assist them in their role. A simple example could be an employee with ongoing back problems that may need a special chair or someone with vision problems who needs a larger computer screen.
Is it breaking the law if they do not disclose mental illness and then need to take time off as a result?
It would not be breaking the law, but you do have to be careful. If an employee states in the health questionnaire that they don’t have any medical condition(s) which would affect their work and then takes considerable time off due to an ongoing condition, there is an argument that they have not been truthful. An employer could pull them up on this. If, however, your absence is very limited this should not be a concern.
What can employers do to make their workplaces more mental health-friendly if an ideal candidate does have such issues?
There are many things that can be put in place to help support employees with mental health problems, enabling them to stay in work. If the employee has been honest regarding their mental health then there are options that an employer can take such as flexible working, adjusting the workload or extending deadlines, where possible, to reduce the pressure that they are under.
If employees do not disclose mental illness, however, then it can make it harder for their employers to support them in a timely manner for example, if their work is suffering as a result of declining mental health but the employer is not aware they will just think that the work is not up to standard and take steps relating to that.
What piece of legislation are applicants’ and employees’ rights protected under?
The Equalities Act 2010 provides protection in the workplace from both direct and indirect discrimination on account of certain protected characteristics. This includes gender, age, race or disability. Mental health falls under the disability category. Section 6 states that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal everyday activities. Section 39 details the exact discrimination which an employer is prohibited to conduct against an applicant/current employee. This includes the prohibition of an employer to discriminate against a person as to the terms which the he offers that person employment. Section 120 states that an employment tribunal has the jurisdiction to handle complaints relating to such discrimination in the workplace.