Generally no: the Equality Act 2010 bars asking job applicants about disability or health, including neurodivergence, before shortlisting or a job offer, save for narrow reasons like arranging reasonable adjustments. The rule sits in section 60 of the Act. Until you have shortlisted a candidate, or made them a conditional or outright offer, a direct “are you neurodivergent?” question on an application form or in an interview is unlawful. Neurodivergence such as autism, ADHD, dyslexia and dyspraxia counts as a disability where it has a substantial, long-term effect on everyday activities, so it falls squarely inside that bar.
The five things you can still ask about
Section 60 sets out a closed list of exceptions. Before an offer you may ask about health or disability only to:
- work out whether a candidate needs a reasonable adjustment to take part in the recruitment process itself, such as the interview or a test;
- check whether they can carry out a task that is intrinsic to the job, once any adjustment is in place;
- monitor the diversity of your applicants, anonymously;
- take positive action to support a group that is under-represented or disadvantaged; or
- fill a role where having a particular disability is a genuine occupational requirement.
Notice what is missing: a blanket “tell us if you are neurodivergent” tick-box on the form does not fit any of these. It is not the same as asking what adjustments someone needs, and it is not anonymous monitoring if it sits next to their name.
The enforcement point most guides leave out
Here is the qualifier the law-firm blogs tend to skip. A breach of section 60 on its own cannot be taken to a tribunal by the applicant; only the Equality and Human Rights Commission can enforce the asking. That sounds reassuring, but it is the trap. The moment you act on the answer, for example by quietly screening out a candidate who disclosed ADHD, that candidate can bring a full disability discrimination claim, and section 60 then shifts the burden of proof onto you to show the decision was not discriminatory. You would be defending a claim while having already conceded you asked a question you should not have.
What to ask instead
Replace the diagnosis question with an adjustments question. Invite every candidate, in the same words, to tell you if they need any adjustments to the recruitment process, and offer concrete examples (extra time, questions in advance, a quieter room). This is expressly permitted, it is more useful than a label, and it does not single anyone out. Keep any neurodiversity or disability monitoring strictly anonymous and held apart from the people making the hiring decision. Acas sets out the same line for employers (Acas).
If you run a positive-action or Disability Confident scheme, you can still ask about disability for that purpose, but keep it separate from shortlisting and make taking part voluntary. For more on the underlying duty, see what are reasonable adjustments under the Equality Act.
Where the law comes from
Related
This page is general information, not clinical or legal advice.