An employer cannot claim for loss caused by an employee's mental illness merely because the employee fails to mention a history of mental illness at the recruitment stage. However, it may have a misrepresentation claim if the job offer is conditional on medical fitness and the employee gave a false or misleading answer to specific questions in the pre-employment medical questionnaire. Questions should therefore be drafted carefully to maximise the employer's protection.

Here the medical questionnaire asked whether the employee "normally" enjoyed good health, whether she had a mental impairment, what her most recent medical treatment was for, and whether she had an ongoing condition that would affect her employment. The employee had suffered previous short episodes of depression but was normally healthy; she didn’t have an ongoing depression, only an ongoing vulnerability to depression; and her most recent treatment was for a back problem. Nothing in the questions required her to disclose her past illness or ongoing vulnerability. (Cheltenham Borough Council v Laird, HC)

Pre-employment medical questionnaires should therefore include a sweep-up question as to whether there is anything in the employee's history or circumstances that might affect the recruitment decision. However, employers should consider whether an employee may be protected as disabled before acting on information received in response to such a question.