Cheltenham Borough Council brought a claim for damages against a former employee in respect of an allegation that she had made fraudulent and negligent misrepresentation in the pre-employment medical questionnaire ("medical questionnaire") she had completed. The High Court confirmed that, depending upon the wording used, the completion of a medical questionnaire can create a duty of care on the employee which is owed to their employer. However, this depends upon the wording used and in this case it had not been drafted specifically enough. While this case appears to result from an acrimonious breakdown in the relationship between a senior Council employee and the Councillors, it emphasises the importance of carefully wording medical questionnaires. It also reminds employers of the need to carefully consider how they use the information they obtain.
Employers often make job offers conditional on satisfactory completion of a medical questionnaire or a medical assessment. This evidence may be needed to satisfy the employer that a job applicant is physically able to undertake the role or to avoid the risk of employing someone who may be or may become unable to work because of ill health.
Employers have to deal with the contents of a medical questionnaire carefully. If put on notice of an applicant's disability at any stage of the recruitment process an employer is under a duty not only to avoid discriminating against that applicant, but if appropriate, to make reasonable adjustments to alleviate the disability's effects.
An applicant who provides false information when applying for a job (whether on a medical questionnaire, CV or otherwise), exposes themselves to the risk of their employer terminating their contract fairly when the truth comes to light. In these circumstances an employer also has the ability to claim damages for any losses incurred as a result of the misrepresentation.
In 2002 Mrs Laird was offered the position of Managing Director of Cheltenham Borough Council subject to medical clearance. The Council's occupational health service declared her fit on the basis of her completed Medical Questionnaire. Within a year her relationship with colleagues deteriorated and various grievances were brought by and against her. At various stages Mrs Laird became unwell and suffered from panic attacks. Following opinions from occupational health and a psychiatrist Mrs Laird was granted ill health retirement. This carried a substantial financial cost to the Council.
The medical opinions indicated that Mrs Laird had a history of depression and anxiety and taking anti-depressants. The Council obtained a court order for disclosure from occupational health services of the medical questionnaire that Mrs Laird had completed at recruitment. The answers Mrs Laird gave did not indicate her depressive illness. The relevant questions and answers from the medical questionnaire were:-
Q: Do you normally enjoy good health? A: Yes
Q: Do you have either a mental and/or physical impairment? A: No
Q: Date when you last had medical treatment and reason? A: Bruising to lower back following a fall at work 19/9/2001
Q: Have you any ongoing condition which would affect your employment? A: No - I get occasional migraine but this does not affect my ability to work or usually require time off work.
The Council brought High Court proceedings against Mrs Laird alleging negligent and fraudulent misrepresentation. It sought damages of nearly £1 million, representing the cost of dealing with the various internal disputes involving Mrs Laird (over £500,000) and the ill-health element of her pension (almost £450,000).
The High Court rejected the Council's claims. The Judge accepted that if Mrs Laird had disclosed details of her medical history, the Council would not have employed her. However, he found that the answers which Mrs Laird gave on the medical questionnaire were not false, and therefore she had not misrepresented her health thereby unlawfully inducing the Council to employ her.
The wording of a medical questionnaire
Central to this case was the wording of the Council's medical questionnaire, which did not, in the Judge's view, require Mrs Laird to disclose information about her history of stress and depression. The wording of the medical questionnaire was far too open to 'reasonable' interpretation for the Council to rely on. If a questionnaire is ambiguous in that more than one meaning might reasonably be given to a particular question asked, then an answer correctly addressing either of those meanings would be true. A questionnaire should be detailed and ask specific questions in order to pinpoint any relevant aspects of the employee's medical history that may be of concern and relevant to the job in question. For example, if there was a concern about the applicants' ability to handle pressure due to the seniority of the role, a better question to ask would have been "Given the seniority of this role and the pressures associated with it, is there anything in your medical history that might affect our decision to offer you employment?"
Duty of care on employee
The outcome of this claim could have been very different if the medical questionnaire had been drafted well. This is because the completion of such a questionnaire can create a duty of care on the employee to an employer. The Judge did give a view on the costs the Council would have been able to recover if he had found Mrs Laird had answered the questions fraudulently/negligently (approximately £270,000). To assist imposing such a duty, offer letters should ensure that any job is subject to satisfactory medical clearance and medical questionnaires should include a statement to say that the questionnaire is completed "to the best of the employee's ability". For the avoidance of doubt it is also recommended a statement is included within the medical questionnaire indicating the employee's acknowledgement that the employer will rely on the responses given, in both making the decision to recruit the applicant, and allowing him/her to continue in the role.
Disability discrimination considerations
While this wasn't addressed in the Laird decision, before acting on information in a medical questionnaire, employers must consider the Disability Discrimination Act 1995, and in particular their duty to consider reasonable adjustments. In this case Mrs Laird was not found to be disabled at the time of her recruitment. However, where an applicant's answers to a medical questionnaire indicate potential disabilities, employers should discuss these answers with a medical professional (usually occupational health) to allow them to determine (i) whether reasonable adjustments can be made to enable the applicant to carry out the role; and (ii) having taken into account reasonable adjustment considerations, whether the employer is able to argue that the medical condition(s) the applicant suffers from means that it would not be appropriate for them to be appointed to the role in question (for example, because of health and safety reasons).