Hillary Clinton’s health records have recently become a hot topic as the US electorate has been questioning whether she failed to disclose serious health issues and if she is medically fit to take on the role of US President. But how much can you, as an employer, ask candidates about their health before you offer them a role? What if, after you have offered them the role, or after they have started, it transpires that they have lied?
Here we look at what you can and can’t ask candidates and the options open to you if you later find that you have been misled. We look at:
- What can you ask before you offer a candidate the role: it is unlawful to ask candidates health questions before offering a role. Health questions will include questions about their sickness absence record. The main exception to this prohibition on asking health questions is if the question is necessary to check that the candidate can carry out a function ‘intrinsic to the role’. For example, a roofer will need to be able to climb up a ladder. You can also ask questions in certain situations, for example: to ensure you can make any adjustments to the application process, to monitor diversity, take certain positive action to improve disabled people’s employment rates or to check someone has a particular disability if that is a requirement of the job.
- What you can ask after you have offered the role: you can make job offers conditional on passing health checks to ensure that the employee is physically able to carry out the role.
- But what if you later find the candidate has lied about their health, after they have accepted the offer? You might want to retract the offer/terminate their employment if they have already started. But before you do so:
- Check if they have actually lied? Check the exact information/questions they were asked and what they said in detail. If it comes to it, a court or Tribunal will invariably give them the benefit of the doubt.
- If they have lied, is the information they have withheld material? How serious is the health information that has been withheld and how far it is likely to impact on them being able to carry out their role. For example, if they didn’t disclose that they had hay fever, this is unlikely to be material. However, if after hiring a senior employee for a business critical role the employee then goes on long term absence for depression and you then find they had a recent history of these absences which they failed to disclose to you when asked, this will be a much more material issue.
- Consider if it is an integrity issue: If the information that was withheld is sufficiently material, you may be able to say that this is an integrity issue and that as a result of the lie you can no longer have trust and confidence in this employee.
- Be aware of the risks if you retract the offer/dismiss: if they have not joined or have only been employed a short time they will either not yet be employees or will not have 2 years’ service to bring an unfair dismissal claim. This means that technically you will only need to give them their notice under the contract to bring the employment to an end. But, if they do have a medical issue, they may well argue that the real reason you dismissed them or retracted the offer was not because of the failure to disclose the information but because you found out about this condition and that the decision to dismiss was an act of disability discrimination in which case they can bring a claim for disability discrimination and do not have to have any minimum period of service.
It can be difficult to refute this. Therefore:
- take advice before you dismiss or retract the offer;
- if they have already joined, because of the risk of a discrimination claim, you may want to mitigate your risk by following a process before dismissing which clearly explains your reasons;
- if they are unable to carry out the role due to the condition, consider dismissing for capability as well as for as for withholding this information which may well put you on stronger ground; and
- in all cases, have a clear paper trail explaining your reasons.