During a recruitment process, there is often a genuine requirement of an employer to assess whether an applicant is fit and able to do the job advertised. A common way of undertaking this assessment is with the use of a pre-employment medical questionnaire. It is often the case that prospective employees are advised that, should the potential employee fail to disclose a condition which later proves to prevent the employee carrying out their role, the employer is entitled to terminate the employee’s contract.
A case demonstrating the difficulties faced by employee and employer in relation to the use of medical questionnaires is Cheltenham Borough Council v Laird  EWHC 1253, in which an employer sued a former employee for fraudulent misrepresentation in failing to disclose stress related illness on her medical questionnaire.
The facts of the case, in brief, are as follows:
Mrs Laird had suffered from a period of stress related illness. She applied for a job with Cheltenham Borough Council as Managing Director. At the time of her application she had recovered from the stress related illness, but was completing a course of anti depressants, in line with normal treatment. She was asked to complete a medical questionnaire. She was asked:
- Do you normally enjoy good health? She answered “Yes”
- Do you have any physical or mental Impairment? She answered “No”
- Have you any ongoing medical condition which would affect your employment? She answered “No – NB I get occasional migraine but this does not affect my ability to work or usually require time off (treated with Zonig)”
During the course of her employment, relations between Mrs Laird and a Councillor broke down. Mrs Laird was suspended pending a disciplinary investigation. This led to a deterioration in Mrs Laird’s health to the extent that she was unfit to participate in any disciplinary investigation. As a disciplinary hearing could not take place, Mrs Laird was allowed to retire on an ill health pension.
The Council then became aware of Mrs Laird’s previous period of stress related illness. On looking back at Mrs Laird’s pre-employment medical questionnaire and discovering that she had not disclosed this, the Council sued Mrs Laird for fraudulent misrepresentation.
The House of Lords held that there had been no fraudulent misrepresentation by Mrs Laird and therefore the Council was not entitled to recover damages from Mrs Laird.
It was determined by the House of Lords that the questionnaire was poorly drafted and as a result of the drafting there was no duty for Mrs Laird to disclose her prior period of stress related illness. The questions were ambiguous and Mrs Laird had given the, or at least a, correct answer to them.
This case highlights the necessity to correctly frame medical questionnaires to ensure that the required information is provided by the employee and to ensure that the questionnaire may be relied upon by an employer. We suggest that you:-
- IDENTIFY YOUR AIM
There should be a reason why completion of the medical questionnaire is necessary. For example, an applicant for a managerial post must be able to withstand the demands of the role. In this case the questionnaire would be geared towards assessing a candidate’s mental health.
- MAKE SURE YOUR QUESTIONS ARE CLEAR AND UNAMBIGUOUS
An ambiguous question can lead to an ambiguous answer. As can be seen from the Cheltenham case, where there can be more than one answer to a question, as long as one of those answers is given and is true, there will be no misrepresentation by the candidate.
- MAKE SURE YOU HAVE A “CATCH ALL” QUESTION
Inevitably there will be a situation which you have not thought of that will no doubt prevent an employee carrying out their role. A “catch all” question would put the onus on the employee to disclose information. This would be along the lines of “is there anything in your medical history or your circumstances which might affect our decision to offer you employment?” or “is there anything in your medical history that could prevent you from carrying out your employment?” This was specifically referred to as desirable in the Cheltenham case by the House of Lords.
- CHOOSE YOUR WORDS CAREFULLY
It is important that you choose your words carefully. For example choice of the word “could” or “would”? “Is there anything in your medical history which could affect your employment?” is a much wider question than “. . . would affect your employment”. “Would” means it definitely will, “could” means it has the potential to adversely affect a candidate’s ability to carry out the job.
- REMEMBER THE “REASONABLE PERSON TEST”
Your questionnaire will be interpreted by the courts in line with the reasonable person test. i.e. “what would a reasonable person understand the question to be?” One way of testing the question is to ask someone who has not been involved in the drafting of the questionnaire what they understand the question to mean.
- GIVE THE CANDIDATE SOME GUIDANCE
To ensure your questions are being interpreted in the manner you intended, provide some guidance for the candidate. This could be an example of what would amount to “mental impairment” contained within the form, or even provide a separate guidance note with examples that could be sent out alongside the questionnaire.
It was made quite clear in the Cheltenham case that, had the questionnaire been drafted in such a way as to impose a duty on Mrs Laird to disclose her history of stress related illness, and had she still failed to disclose, the Council would have been successful in recovering damages from her.
Many candidates with a history of mental health problems are reluctant to volunteer information in this respect for fear of being rejected for the position for which they have applied. To this end, it may discourage applications for posts where this sort of information is requested which runs contrary to the spirit of the Disability Discrimination Act 1995.
The Equality Bill is currently making its way through parliament and is expected to come into force in Autumn 2010. The Bill will streamline existing discrimination legislation into one Act. As part of the consultation and amendment process, concerns have been raised by the disability lobby regarding the use of pre-employment medical questionnaires. Questionnaires of this nature are prohibited in Spain, France, Italy, Belgium, Portugal and the Netherlands. In the United States employers cannot ask people if they have a disability until after a job offer has been made. The Americans with Disabilities Act 1990 states that employers: "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." The report published following the Commons Committee stage of the Bill in April 2009 stated:-
“We endorse the Disability Rights Taskforce's recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. As a general rule such questions should only be permitted after a conditional/provisional job offer has been made. There will be cases where a job offer is withdrawn because of health-related concerns or because reasonable adjustment for a disability is not possible. However, the process would then be transparent, and where there is disagreement as to the decision, further consideration or mediation are possible.”
However, the Solicitor General has now indicated that the Government will introduce an amendment to the Bill in this respect but it is unclear at this stage how far this will go in terms of regulation of the use of pre-employment questionnaires.
In the meantime, it is suggested that employers can continue to use medical questionnaires. However, a note of caution should be sounded as it is imperative that employers take into account the provisions of the Disability Discrimination Act 1995 and do not simply rule out a candidate on the basis of their state of health. Meaningful consideration and further enquiries should take place in order to establish whether the candidate is capable of doing the job in question and whether any reasonable adjustments can be implemented to this end. Failure to do so could expose an employer to a claim of disability discrimination. There is no financial cap on such a claim.
For more information on this, please visit the employment section of our website: http://www.morton-fraser.com/services/employment