Ask the panel

September 2, 2005

I have just received an application form for a job at my local university.

It asks for the number of sick days that I have taken in my past employment. Is this legal?

* The panellist from the University and Colleges Employers' Association is clear: "The short answer is yes, it is legal. Employers have the right to ask questions in the course of recruitment about candidates'

capability to do the job and levels of absence from work may be an indicator.

"However, disabled applicants have protection under the Disability Discrimination Act. Employers are required to consider making 'reasonable adjustments' to accommodate a potential employee's disability.

If sick leave has been taken as a direct result of a disability (as defined under the Act), or another justifiable reason, it may well be that a prospective employer would discount it in the course of their decision-making. If you, as an applicant, are concerned that your sickness record may give a negative impression, you may choose to explain the underlying reasons in your application."

* The union panellists agree but add caveats. The Association of University Teachers panellist says: "There is nothing unlawful about the university asking for the information, however, they should be careful about how they use any information provided. The university needs to ensure that any decisions they make based on the information you provide are not discriminatory. For example, rejecting an application based on the number of days sick where some or all of those periods of sickness were related to a disability or pregnancy could be contrary to the Disability Discrimination Act or Sex Discrimination Act respectively. If you have particular concerns about this, speak to your union representative."

* The panellist from the Equality Challenge Unit explains further: "The university can ask for this information at application stage, and it could be used to make assumptions about you and your ability to perform in the job, which you may disagree with. Prospective employers can also ask about any pattern to sick leave: whether it was made up of short periods of sickness absence or less frequent, longer periods. The first category tends to worry employers, as frequent unplanned absence can be disruptive to business and less easy to accommodate.

"However, questions about sickness absence are not best employment practice, because of their potential to impact adversely on disabled job applicants. In general, disabled people take no more or less sick leave than non-disabled employees. However, some people's impairments may cause them to take greater than average sickness absence from work, which could be frequent or occasional, planned or unplanned, long or short term. Answering questions about sickness absence leaves disabled applicants with little choice but to disclose their disability at application stage, which they might not otherwise have chosen to do.

"Because such questions are lawful, a disabled applicant has to decide how best to answer them. We would advise such an applicant to divide sickness absence into two categories of 'disability leave' and 'non-disability-related sickness absence'. He or she should decide whether to include both figures on the application form in answer to the university's question, or just the second, making it clear what this refers to. In such a case, current or previous employer(s) may have already operated best practice by making the distinction between the two forms of absence on personnel records.

"If the university doesn't progress your application to the next stage because of a high level of sickness and/or disability-related absence on your form, they may have acted unlawfully, and you should seek legal advice. If the university is committed to fair employment practices but feels it needs to ask applicants about levels of sickness absence, it should make it clear that disclosure of disability-related absence will not be used against applicants, and that the university is committed to making reasonable adjustments required by a successful disabled candidate."

This advice panel includes the Association of University Teachers, Natfhe, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party.

Send questions to advicepanel@thes.co.uk

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