Disability discrimination: Do employees have to tell their employers they have a disability?
Most employers are fully aware that they shouldn't ask applicants during the recruitment process and at interview if they have a disability or other health-related questions, except in a few very limited circumstances.
This is to ensure that applicants are offered work on their own merits and are not discriminated against because of disability.
Candidates and their disability
The question is should prospective employees have to disclose their disability to their potential employer?
There's no general or legal duty for them to do so, but if they do volunteer this information, interviewers must not respond by asking further questions about it. They should take particular care not to be influenced by the information in their selection decisions.
Candidates should, however, disclose their condition when it might pose a risk at work to themselves or others.
And employers should ask candidates whether they need any 'reasonable adjustments', sometimes also called 'access requirements', for any part of the recruitment process. This is not the same as asking a candidate whether he or she is disabled.
What about employees?
When an employee with a disability would like their employer to make reasonable adjustments for them, then they will have to disclose their disability.
Employers can't usually be held liable or responsible for failing to make reasonable adjustments if they did not know about the disability.
But employers are expected to do all they 'reasonably' can to find out if an employee is disabled.
If someone working for the employer - such as another employee, an occupational health adviser or recruitment agency - knows of the disability, the employer will not usually be able to claim it didn't know, according to the Equality and Human Rights Commission's Employment Statutory Code of Practice.
Once the employee disclosures the disability, this should be kept confidential by the employer unless the employee has made it clear they are happy for the information to be shared.
Of course, in some instances, a disability may be obvious - for example, an amputee or wheelchair user - in which case, confidentiality cannot be an issue.
In other instances, where the employee needs support from colleagues, or there are health and safety reasons, colleagues may also need to be aware.
Expert employment solicitor Robert Rocker explains and answers some questions about disability discrimination during recruitment.
Transcript of the video
My name is Mark Ferron from Castle Associates and I speak to employment law experts across the country and in this short video I speaking to employment law expert and solicitor Robert Rocker about disability discrimination.
If an employee has a disability, do they have to inform their employer?
It is not necessary to inform your employer that you have a disability; however, it is sensible to do so to enable the employer to make reasonable adjustments.
During the recruitment process, do you have to declare a disability?
There's no legal obligation to disclose a disability on recruitment and in fact, the employers cannot really question you about disability during the recruitment process however it is always sensible to identify your disability to enable the include the prospective employer to make reasonable adjustments.
Can someone be dismissed if they have not declared a disability and the employer finds out at a later date?
If an employer dismisses you having found out about a disability that you did not disclose earlier on that dismissal could be unfair particularly if your disability is covered by the Equality Act 2010
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