Medical conditions can seem like a complicated subject for employers. On the one hand, they might affect an employee’s ability to work or lead to changes and adaptations being required, but on the other hand, medical conditions are a personal subject with details that an employee might not want to disclose.
Employers have to know where they stand in order to avoid breaking the law. Additionally, it’s important to be sensitive to the needs of each employee beyond what the law requires. Simply being allowed to ask a certain question doesn’t mean that you definitely should in the way that you might have planned. Here are some things that employers can ask about an employee’s medical condition:
To help them with reasonable adjustments
Employers can ask questions that help them to determine if they need to make reasonable adjustments. This might include an adapted working environment or additional flexibility. An employer can ask about a medical condition if it’s thought that the condition might affect the employee’s ability to do their job. For example, the British Armed Forces cannot employ individuals that have had two or more seizures since the age of 6, or have a diagnosis of epilepsy.
Companies are prohibited to ask regarding health during the recruitment
During recruitment, companies are not allowed to ask any questions regarding health or disability. This includes questions about the number of sick days taken at the applicant’s previous place of work. Exceptions are made for questions that determine the applicant’s ability to take part in any assessments, and to highlight any adjustments that the applicant might require to have a fair shot at the assessment. There are also exceptions made for questions that determine whether or not an applicant can do a part of the job that is absolutely essential for example, questions that determine whether applicants can climb or do the heavy lifting.
What protection is available for the employer and the employee?
The employee is protected by law when it comes to asking questions about medical conditions. The burden of proof is on the employer, who must be able to show that they had a valid reason for asking a question. If an employee believes that they were asked a question for purposes of discrimination or as an invasion of privacy, then the employee can seek legal action.
The employer and employee can both work to protect themselves. Employers should take extra care only to ask questions that they can justify if required, whilst employees should take extra care only to answer the questions that are asked. It is easy to accidentally volunteer more information than necessary.
Who should an employee talk to about a medical condition?
The best people for an employee to speak to are direct managers (such as line managers), occupational health advisors (if available), trade unions (if there are concerns about treatment), and human resources managers, who may be able to provide advice and also to offer support with any adjustments, sick days and flexible working hours that may be needed.
Whilst employees have the option to keep new medical conditions hidden, it can be extremely difficult to do so. It might actually be beneficial for the employee to volunteer that information. Employers also have a right to ask for medical certificates and proof of any condition, including fit notes if necessary, which should also be kept in a secure place.