It's important to ask the right questions in pre-employment medical questionnaires
Charles Wynn-Evans and Emma Byford, August 24, 2009
Employers have been reminded of the need to take considerable care when checking employees' medical history as part of the recruitment process in the case of Cheltenham Borough Council vs Christine Laird.
As part of the application process for the role as managing director of Cheltenham Borough Council (CBC), Laird was required to complete a questionnaire about her health. On the basis of that questionnaire, CBC's occupational health advisers confirmed Mrs Laird was fit to work. Subsequently, Laird was absent for extended periods and, in 2005, retired on the grounds of ill-health.
Following the termination of her employment, CBC issued proceedings against Laird for fraudulent and negligent misrepresentation. The basis of CBC's claim was that Laird's responses to the questionnaire were false since she had not disclosed previous episodes of depression (which she had suffered on three separate occasions between May 1997 and June 2001). In short, CBC asserted it would not have employed Mrs Laird had it been aware of her history of depression.
CBC lost the case. The court concluded that, due to the poor and ambiguous drafting of the medical questionnaire, Laird's answers were neither false nor misleading. In coming to this conclusion, the court focused on the fact that the questions were addressed to an individual without medical expertise.
Accordingly, where the form was ambiguous, and could be answered in a number of ways, an answer that correctly addressed any of the potential meanings of a particular question would be true. By way of example, one question posed to Mrs Laird was: ‘Do you have either a physical and/or mental impairment?' Laird answered "no". The court found this answer to be true even though Laird was taking anti-depressants in January 2002 (when she had been interviewed for the CBC role and completed the questionnaire). This was because a continued course of such medication was usual practice after a period of depression. At the time she completed the questionnaire, Laird was no longer suffering from depression. The court found that a reasonable person would construe the question as meaning an ongoing condition or something that affected them as at January 2002.
While it is more likely employers will wish to withdraw job offers or dismiss staff who give misleading answers to health questions than to sue those staff for fraudulent misrepresentation, as was done here, employers should not underestimate the importance of this case for a number of reasons:
- Where physical or mental fitness for a role is paramount, employers must get the groundwork right. As a starting point, medical questionnaires should be tightly drafted so as to ensure disclosure of material facts that are relevant to the role. Questions that can be construed in a number of ways should be avoided and, where appropriate, clarification should be provided by way of examples/notes to the form. Furthermore, employers should consider whether a medical examination by a qualified practitioner is the more appropriate manner in which to obtain adequate information about prospective recruits. Likewise, employment offers and contracts need suitable wording, making clear the employer's ability to terminate if inaccurate or misleading information is provided (a point that applies to all relevant information and not just medical data)
- Employers must nonetheless also appreciate that the disclosure of medical information may place additional burdens upon them. First, requesting information about an individual's medical history during the recruitment stage may put the employer on notice that the prospective employee is a disabled person for the purposes of the disability discrimination legislation. If, after receiving this information, the employer decides not to recruit that individual, it may be difficult successfully to defend a disability discrimination claim. As a result, employers should carefully consider whether they really need the information in the first place. In the same vein, employers should also be mindful of the limitations that apply to the legitimacy of requests for sensitive personal data about individuals' health under data protection legislation. In short, employers should not request more information than is necessary for the role in question
- Employers will need to consider carefully, on a case-by-case basis, how to broach allegations of inaccuracies or misrepresentations within application material. This is because the CBC vs Laird case illustrates that, what might initially be perceived as misleading/false information, could actually be considered by a court or tribunal not to be so. Dismissal may then be found not to be justified
Charles Wynn-Evans is a partner and Emma Byford is an associate at Dechert LLP