- Section 60 of the Equality Act 2010 prohibits asking about a candidate's health or disability before a job offer, with limited exceptions.
- The offer can be conditional on health checks – so the right sequence is: select on merit, offer, then assess.
- Exceptions cover interview adjustments, functions intrinsic to the job, anonymous diversity monitoring, and disability as an occupational requirement.
- Asking a prohibited question isn't automatically discrimination, but rejecting a candidate afterwards shifts the burden of proof onto you.
Somewhere in most recruitment processes, the question of health comes up. Can this person do the job? Will they need support? Should we check before we commit? They're reasonable questions – but the law is specific about when you're allowed to ask them, and many employers are still caught out by application forms and interview habits that predate the rules. The line is drawn by section 60 of the Equality Act 2010, and the short version is this: health questions come after the job offer, not before – with a handful of narrow exceptions. Here's how it works in practice, and how to run pre-employment health checks that are both lawful and useful.
Why the rule exists
Before the Equality Act, it was common for application forms to ask about health conditions, disabilities and sickness records – and the evidence was that candidates who disclosed, particularly those with mental health conditions or other hidden disabilities, often never got past the sift. Section 60 was designed to remove that barrier. Its purpose isn't to stop employers choosing the best person for the job; it's to make sure the decision is made on skills and merit, before health enters the picture.
The prohibition is broad. "Health" expressly includes disability. It covers written and verbal questions, application forms and interviews, and it extends to questions put to third parties – so a pre-offer reference request must not ask about sickness absence either. It applies to external and internal applicants alike.
The safest recruitment question about health is the one you don't ask. If it isn't covered by an exception, it can wait until after the offer.
What you can't do before an offer
Until you've made a job offer – or placed someone in a pool of successful candidates for future roles – you must not ask about their health or disability. That rules out the classic offenders: health questionnaires sent with application packs, "do you have any medical conditions?" on the form, interview questions about someone's condition or medication, questions about sickness absence in references, and referring candidates to occupational health before any offer has been made.
One nuance worth understanding: asking a prohibited question is not, by itself, an act of discrimination against the individual. But it has teeth. If you ask one and then reject the candidate, the burden of proof shifts – in a discrimination claim, it becomes yours to prove the rejection had nothing to do with disability. And the Equality and Human Rights Commission can take enforcement action over the practice itself. A question that seemed harmless on a form can quietly become the centre of a tribunal claim.
The exceptions – and how narrow they are
Section 60 permits health questions before an offer only where they are strictly necessary for specific purposes. The ones that matter to most employers:
- Adjustments to the recruitment process. You can ask whether a candidate needs reasonable adjustments to take part in the interview or an assessment – extra time, an accessible venue, materials in a different format. "If you require any adjustments for interview, please let us know" is fine, and good practice. - Functions intrinsic to the job. Where a specific ability is fundamental to the role, you can ask about the candidate's ability to perform that function. The classic example is recruitment of scaffolders: asking about the ability to climb ladders and work at height is permitted, because it's intrinsic to the work. What this exception doesn't allow is general health screening dressed up as a job question. - Diversity monitoring. You can collect disability information to monitor the diversity of applicants – provided it's kept separate from the application and never seen by those making selection decisions. - Occupational requirement or positive action. Narrow cases where having a particular disability is a requirement of the role, or where you're taking lawful positive action.
The EHRC's guidance recommends applying these exceptions narrowly, and explaining clearly when and why you're relying on one. If in doubt, the practical rule holds: don't ask.
Good practice
The exceptions are about the process and the intrinsic demands of the job – not a licence for early health screening. If a question doesn't fit squarely within one, it belongs after the offer.
After the offer: doing checks properly
Here's the part that surprises some employers: none of this prevents thorough pre-employment health assessment. It just fixes the sequence. You are entirely free to make an offer conditional on satisfactory health checks, and once that offer is made, section 60 no longer restricts your enquiries – though data protection law still governs how the information is handled, since health data is special category data requiring careful, limited access.
This is where occupational health earns its place. A good pre-employment assessment isn't a fishing expedition into someone's medical history; it's a focused, confidential process that answers the questions that matter: is this person fit for this role, and what adjustments would help them do it well? The employer typically receives a fitness-for-role outcome and any recommended adjustments – not the clinical detail, which stays confidential to the occupational health service.
Medwyn tip
A new warehouse hire is offered the role conditional on health assessment. The pre-employment assessment identifies a back condition, well managed, and recommends a height-adjustable workstation for packing duties and training on safe lifting. The candidate starts on time, set up to succeed – and the employer has met its duty to consider adjustments from day one.
One caution: withdrawing an offer after a health check is the highest-risk moment in the whole process. If the reason relates to disability, you'll need to show that no reasonable adjustment could have made the role workable – and tribunals expect to see that adjustments were properly explored, ideally with occupational health advice, before any offer was pulled.
Getting your process straight
- Remove health and sickness-absence questions from application forms and pre-offer reference requests.
- Ask only about interview adjustments before offer – and keep any diversity monitoring separate from selection.
- Check any "intrinsic function" questions relate to the fundamental demands of the specific role.
- Make offers conditional on health assessment where the role justifies it, and refer to occupational health only after offer.
- Treat all health information as special category data – minimum access, stored securely.
- Never withdraw an offer on health grounds without exploring adjustments and taking occupational health advice first.
Done in the right order, pre-employment health assessment protects everyone: candidates are judged on merit, employers get the assurance they need, and new starters arrive with the right support already in place.
This article is general guidance for employers and is not individual medical or legal advice. If you are unsure how it applies to your organisation, contact our team.