Equalities Act 2010

During the parliamentary stages of the Equality Bill, mental health organisation Mind lobbied with other mental health and disability charities to get a ban on pre-employment questionnaires included in the Act. After securing cross-party support for the principle of a ban on questions that ask about a candidate's medical history and putting considerable pressure on Ministers, the last Government introduced a new clause to the Equality Bill making these questions unlawful.

The Equality Act came into force on October 1st 2010.  The act bans companies from finding out whether potential employees are healthy enough to work for them prior to an offer of employment. Candidates will no longer be expected to declare medical issues during the recruitment stage unless it is specifically related to their job role.

Equality campaigners have long argued that employers discriminate against prospective employees with mental health issues, disabilities or a long history of illness, putting people off applying for a job.

However, 65pc of employers still ask a candidate about their health prior to a job offer, and 48pc ask potential employees to fill out a questionnaire detailing medical conditions and sickness records, according to a poll of 100 companies by law firm Pannone.

Jim Lister, head of employment law at Pannone, said: "The penalties for employers include investigation by the Equality and Human Rights Commission and the reversal of the burden of proof, meaning that the employer will be assumed to have discriminated, unless it can show there was another reason for non-selection.

Organisations that learn of a person's health issue after the job offer but fail to make reasonable adjustments and are forced to withdraw the offer face litigation, lawyers have said.

The reversal of the burden of proof is highly significant.  Effectively this means that an employee who feels discriminated against on the grounds of mental ill-health, for example, is not required to prove that this is the case.  It becomes the employer's responsibility to prove that this is not the case.  If proved otherwise, the employer will be required by law to comply with equalities legislation and where necessary, to make reasonable adjustments on behalf of the employee.