Hiring an employee who, due to health issues, is not up to the job or becomes unable to work at all, is a typical employment headache. The case of Cheltenham Borough Council v Laird centred on whether an employee's failure to disclose a previous depressive illness on a pre-employment medical questionnaire constituted negligent and fraudulent misrepresentation. The principles below are important but the background to this matter is fascinating if you want to look into it more – there are allegations of Laird being a "Tory nark", telephone bugging, police reports and a suggestion in court that the council were responsible for the death of Laird's cat, which she alleged had been poisoned!
Christine Laird was offered the post of Managing Director by the Council in January 2002, subject to medical clearance. She completed a medical questionnaire but neglected to mention that during the previous 4 years, she had suffered stress-related depression and was currently taking anti-depressants. In 2003 Laird once again experienced mental health problems eventually culminating in her being retired on an ill-health pension in 2005.
This was not the end of the story however, as in 2006 the Council reviewed her medical questionnaire, concluded she had failed to disclose details of her previous stress and depression, cried "revenge!" and made a claim for £1m damages (the cost of her pension and of dealing with various internal disputes). To win, the Council would have had to prove that she made a false statement, either carelessly or knowingly, which the Council had relied upon in employing her. They failed to do this.
The key questions and answers which the Tribunal considered were as follows (we leave you to form your own views …):
"Do you normally enjoy good health? Yes". This answer was not false, because Laird reasonably regarded herself as normally healthy - she was only unhealthy when she was depressed.
"Do you have a physical or mental impairment? No". Again, not false, since although she had a vulnerability to mental health problems she did not have an ongoing depressive disorder and was not depressed when she answered.
"Do you have an ongoing medical condition that would affect your employment? No." Not false, since her condition was not ongoing at the time she completed the questionnaire.
Had the questionnaire been better drafted, the claim might have succeeded. Also, if this had been a case of an employer trying to defend a dismissal rather than recoup money, the result may also have been different. Nevertheless, the case emphasises how important certain bits of admin are. In the case of a medical questionnaire, make sure it covers past and future illnesses and include a sweep-up question such as, "Is there anything else in your history and circumstances which might affect our decision to offer you employment?".