Jobcentre Plus employees have been advised to tell people looking for work to hide mental health issues with terms such as “low mood”.
A jobseeker in Dorset posted a leaflet online that he had been given at his local job centre. It suggests that jobseekers produce a “positive health statement” during the recruitment process, avoiding disclosing diagnoses such as myalgic encephalomyelitis (ME) or depression.
The leaflet said: “You may wish to avoid terms such as depression, ME or low back pain and use more general terms such as low mood or a mental health condition, a fatigue-related condition, an ongoing pain condition etc.”
Mental health charity Mind criticised the advice, highlighting how legislation provides protection for those with both physical and mental health problems if they have a substantial effect on their normal daily activities.
Under the Equality Act, employers should not ask a job applicant questions about their health before offering them employment, but they must make reasonable adjustments to accommodate job applicants with disabilities during the recruitment process. Section 60(1) of the Equality Act 2010 states that an employer “must not ask about the health of the applicant”. However, under s.60(3), asking health-related questions does not contravene the law on disability discrimination; it is the employer’s reliance on the answers provided that may be a contravention.
The way the provisions in the Act are drafted means that an employer that asks health-related questions prior to making a decision about whom to appoint, and that fails to appoint a disabled candidate, will, in the event of a subsequent disability discrimination claim, have to prove that there were other reasons for its failure to appoint the candidate to the role that were not related to their disability. In other words, there will be a presumption of disability discrimination if the employer asks health-related questions prior to making a job offer, which the employer will have to rebut if an unsuccessful candidate brings a claim of disability discrimination. Defending a claim is likely to be difficult and time consuming. Therefore, it is advisable for employers not to ask health-related questions in most cases.
In addition, the Equality and Human Rights Commission (EHRC) can take direct enforcement action against employers that ask pre-employment health questions, although in practice this is likely to be rare.
“Anyone who discloses a mental health problem at work deserves to be treated with respect, and job centres should not be reinforcing stigma by advising people not to disclose,” said Ayaz Manji, a senior policy officer at Mind. “People with mental health problems have just as much to offer as anyone else in the workplace, and it’s right that this advice is being challenged.”
Shadow disabilities minister Marsha de Cordova also raised concerns about the wording of the document in the House of Commons yesterday. She said: “It can’t be right that a department is expecting people to downplay their disability or health condition.”
A spokesperson for charity Action for ME added that they were “outraged that people with ME are being told to keep quiet about the reality of their experience”. Around 250,000 people in the UK have the condition.
The Department for Work and Pensions responded to the criticism by explaining the document was “well-intentioned local advice”, which has now been removed. “We would always encourage jobseekers to speak freely about a health condition or disability,” a spokesperson added.
An employer can ask a prospective employee to complete a medical questionnaire, but only after it has made them a job offer and only if it complies with data protection requirements. Section 60(1) of the Equality Act 2010 prohibits employers from asking job applicants questions about their health before offering them employment (with some exceptions).
If an employer intends to ask prospective employees to complete a medical questionnaire after making them an offer of employment, it must ensure that it has a legal basis to do so under the General Data Protection Regulation (2016/679 EU) (GDPR), as this will amount to processing their personal data. The employer would have a legal basis if processing is necessary to establish an employee’s fitness to do the particular work, to comply with health and safety obligations.
Information about an individual’s health falls into the special categories of personal data under the GDPR. An employer can process special category data where this is necessary for the purposes of performing or exercising employment law obligations or rights, such as in relation to health and safety. The employer must have in place a policy document that explains how it will comply with the principles of the GDPR in relation to the special category personal data and that sets out its policies on retention and erasure of the data.