“We are recruiting for a new technician. I have been through the applicants and there are two strong candidates. The most qualified candidate has disclosed during the application process that they have a serious medical condition. I don’t want to take the risk they prove to be unreliable, so I was going to choose the other candidate. I presume that is okay?”
The simple answer is no. Discrimination law is very different from unfair dismissal law, the right to protection from discrimination applies to all stages of employment, including to the application process. An employer can be liable for any discrimination from the start of the process even before they have even met the candidate.
Is this a disability
The risk in the situation above is that the job applicant could prove that the medical condition is a “disability” under the Equality Act 2010. To prove this, they have to show that the condition has a substantial long-term adverse effect on day-to-day activities. The effect of any medical condition on work is not the essential ingredient in determining the issue.
It is important to note that whether or not someone is disabled for the purposes of the Equality Act is assessed as if they were not taking medication for the condition. A Tribunal does not ask whether there is a substantial adverse effect on day-to-day activities when taking any medication or treatment, but rather how they would be coping with their medical condition if they were not taking such medication? The result is that a far greater proportion of the population in the UK can argue they are technically disabled in employment law than might be expected.
If the employer rejects the candidate above then the candidate can submit a claim to an Employment Tribunal. To defend such a claim the employer essentially has to show that the decision not to offer the job was not influenced by the disability (provided always the employee can prove they are disabled within the meaning of the Act).
We would generally advise when recruiting that employers should make job offers “blind” to medical information and not seek medical information until after a job has been offered. If after the role has bene offered it transpires that the prospective employee has a medical condition is particularly serious and reasonable adjustments cannot be made to the terms of the job to accommodate that condition, then the employer can subsequently withdraw the offer and can raise a potential defence in the Tribunal.
The fact that someone has a disability should not unduly scare an employer. Treating all candidates fairly and openly is important, as is laying a good paper trail in recruitment to demonstrate the relative candidate’s strengths and weaknesses, so that the employer can prove that the reason they didn’t offer a job to someone who has a disability has nothing to do with the disability.
In the situation above, the claim will be difficult to defend if the disabled employee is the is the one very clear strong candidate, if reference to any condition is made during any interview or rejection or if there are not clear notes to establish the relative strengths of the candidates for the post.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.