27 November, 2017
Recruiters warned to heed Equalities Act in question about mental health conditions
The warning follows the findings of an independent review, commissioned in January and led by former chairman of bankers for HBOS Dennis Stevenson and chief executive of mental health charity Mind Paul Farmer, which also includes analysis by professional services firm Deloitte and the government.
A report entitled Thriving at Work, released today following the review, reveals that up to 300,000 people with long-term mental health problems have to leave their jobs each year, and makes 40 recommendations about how employers and the government can better support employees to remain at work, such as creating an online wellbeing portal and implementing digital technology to support gig economy workers.
But the report also includes a recommendation to improve the disclosure process of mental health conditions with the aim of encouraging openness during the recruitment process, so candidates know why the information is required and to ensure the right support is in place for a good employer response following the disclosure of such conditions.
However, Christopher Tutton, partner at law firm Constantine Law, told Recruiter that while the report encourages openness with candidates on mental health issues, recruiters should be cautious about taking this approach, and do so only where it is directly relevant to the role or for equal opportunities monitoring.
“If health questions are asked of a candidate, this can increase the risk of being found to have discriminated against the candidate on grounds of disability, as there are provisions in the Equality Act which will place the burden of proof on the recruiter if such questions are asked. If clients ask recruiters to raise mental health issues with candidates, it is advisable to seek an indemnity from the client in relation to liabilities for breaches of equal opportunities laws,” he said.
Matthew Potter, partner at law firm Howes Percival Cambridge, agreed, adding that the recommendation is contrary to the protection for employees with disabilities under the Equality Act, which introduced a ban on pre-employment questionnaires.
“The mental health of an employee may not be deemed to be a disability under the Equality Act, but a recruiter would not necessarily know that at the time of asking,” Potter told Recruiter.
“For the recommendations to be implemented, there would therefore need to be a review of the Equality Act and the use of pre-employment questionnaires. That said, if an employer makes it clear that they champion wellbeing and are willing to work with and assist employees with mental health conditions, the employee may be more relaxed during the recruitment process in disclosing or discussing their condition and what adjustments would be required,” he said.
“Employers would need to be very careful if, having received that information, they did not offer employment for reasons connected with the employee’s mental health.”
Dr Sybille Steiner, partner solicitor at law firm Irwin Mitchell, said the report’s recommendations have no legal or financial repercussions for recruiters but added: “Non-compliance with the recommendations may still cause unwanted negative publicity. However, if a prospective employee can bring a claim for either direct or indirect discrimination under the Equality Act, an employer or recruitment agency may be liable for compensation.”
Source: Recruiter (October 2017)