The High Court has ruled that a former employee who failed to refer to her history of stress and depression in a pre-employment questionnaire had not made fraudulent or negligent mis-representations.
Employers should review their pre-employment medical questionnaires to ensure that it requires job applicants to give full details of their medical history and does not contain any questions which are open to interpretation. It is good practice for such questionnaires to provide examples and explanatory notes.
In this case, the High Court noted that the questionnaire had been poorly drafted and did not contain any "sweep-up" question for applicants to disclose matters which fell outside the specific questions asked in the questionnaire.
However, should job applicants disclose a medical condition in a pre-employment questionnaire, employers should consider whether the applicant would be covered by the Disability Discrimination Act 1995. If they are, a decision to refuse their employment solely on the grounds of their disability could constitute unlawful discrimination.
Employers should also consider whether the questions that they ask are necessary, to ensure that they comply with the provisions of the Data Protection Act 1998.
In the case of Cheltenham Borough Council v Laird, Mrs Laird had suffered from episodes of stress and depression between 1997 and 2001 and was also prescribed anti-depressants for some of this period. When in November 2001 she was offered the job of Managing Director at Cheltenham Borough Council (the Council), it was conditional upon medical clearance being obtained from the Council's Medical Advisor following completion of a pre-employment questionnaire. However, Mrs Laird did not refer to her previous episodes of stress and depression or that she was taking anti-depressants in her answers to the questionnaire. She was therefore assessed as fit by the Council's Medical Advisor and offered the position in January 2002.
However, Mrs Laird became ill with stress and depression the following year and in 2005 was granted an ill-health pension by the Council. In August 2006 the Council then obtained a copy of Mrs Laird's pre-employment medical questionnaire and discovered that she had not mentioned her history of stress and depression. The Council brought High Court proceedings alleging negligent and fraudulent mis-representation and sought damages for the costs of granting Mrs Laird an ill-health pension.
However, the High Court found that Mrs Laird's answers were not mis-representations because she had correctly answered each question. For example, in answer to the question "date when you last had medical treatment and reason" Mrs Laird had given details of treatment for bruising to her lower back in September 2001. This was factually correct because it was the last treatment she received before she answered the questionnaire. Furthermore, the questionnaire only asked for details of 'treatment' and not whether or not she was taking any medication.