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:
Charles Wynn-Evans is a partner and Emma Byford is an associate at Dechert LLP
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