Question

Having made a significant degree of improvement over the past year I am considering returning to some form of part-time or flexible employment that I can preferably do from home. But I’m apprehensive about disclosing the fact that I have ME to a future employer. Please could you explain what the legal position is here – especially if I am asked about any health problems at an interview.

Answer

Here are some of the key points about how to deal with the disclosure of health information during the application and interview process for a new job as well as if you are already working and require modifications to your normal working duties/routine as a result of a disability.

Firstly, it’s important to note that the 2010 Equality Act prevents discrimination against disabled people in areas such as employment. Employers have to be very careful when it comes to asking about or discussing issues relating to the health of their employees. The Act defines a disabled person as someone who has a “physical or mental impairment which has a substantial, long-term and adverse effect on their ability to carry out normal activities”.

ME/CFS is recognised as a qualifying condition in relation to the 2010 Equality Act. An employer cannot ask searching questions about your health as part of an application or interview process. However, employers can ask about whether you can accomplish a task that is essential to the job, or whether any reasonable adjustments will need to be made for a person to do that job. At the same time, there is clearly no point in applying for a job that involves tasks that you just cannot do due to ill health or disability.

There are also some circumstances where an employer can ask reasonable questions about medical conditions once you become an employee. However, an employer must not use that information to then discriminate against you. If you develop a disability or illness whilst employed, you must not be fired or made to resign. Instead, your employer should discuss making reasonable adjustments to help you to plan a return to work or enable you to continue to work.

Reasonable adjustments could include flexible hours, modifications to duties, time off for medical treatment, and practical aids. You can agree to let certain people know about your ill health or disability and sign a consent form to comply with the Data Protection Act. If you have been asked a question about medical conditions in an application form or interview that is contrary to the Equality Act, you can inform the Equality and Human Rights Commission, who can investigate the matter and take action if necessary.

If you have been subject to discrimination due to disclosure of your medical condition, you may be able to take a case at an Employment Tribunal. There is a three-month time limitation for claims, so you should seek the advice of an employment solicitor without delay if you find yourself in this situation.

More information

• The ME Association has a comprehensive information booklet that provides all you need to know about Employment Issues and ME/CFS. It discusses stopping or reducing work, keeping in touch with employers while sick, negotiating a return to work with reasonable adjustments, work-related benefits, and early retirement on the grounds of ill-health. It has been written by Dr Shepherd with expert input from the ME Association's welfare benefits and employment advisers.