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Jean-Yves Gilg

Editor, Solicitors Journal

No doubt

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Employers should avoid ambiguity in their medical questionnaires to ensure they recruit staff who are able to effectively perform their roles, says Sarah Jane Turcan

Employers very rarely sue their former employees. It is not a good message to send to the ongoing workforce and the financial realities often mean that the individual is not worth pursuing. The case of Cheltenham Borough Council v Laird [2009] EWHC 1253 was an unusual one as it was based on the employer suing a former employee for both fraudulent and negligent misrepresentation.

Mrs Laird applied for the position of managing director of Cheltenham Borough Council in November 2001. Following interviews, she was offered the position in January 2002, with the offer being 'conditional upon medical clearance being obtained from our medical adviser'.

The extent of the medical clearance required was that Mrs Laird completed a medical questionnaire. The occupational health representative informed the council that 'based on the information given on the health questionnaire, the applicant has been found to be '¦ fit'.

Mrs Laird took up the position of managing director early in 2002, then there were local elections in May 2002 and Councillor McKinley became the new leader of the council. Mrs Laird and he found it very difficult to work together and in 2003 Mrs Laird raised grievances about him. He made disciplinary allegations against her and she was subsequently suspended on full pay and a 'designated independent person' was appointed to investigate her conduct. She began to suffer from mental health problems and in mid-2005 a consultant psychiatrist said that she was unfit to undergo the investigation. The council subsequently wrote to her stating that it regarded her employment contract as frustrated because there was no reasonable prospect of the investigation taking place. She was granted an ill-health pension.

Between 1997 and 2001 Mrs Laird had suffered three episodes of stress-related depression and as a result had taken a total of three months' sick leave. She was regularly prescribed anti-depressants during this period and was taking medication between June 2001 and February 2002. In August 2006 the council obtained a copy of her pre-employment medical questionnaire, in which Mrs Laird had answered the following questions:

  • Do you normally enjoy good health? Yes.
  • Do you have either a physical and/or mental impairment? No.
  • Date when you last had medical treatment and reason. Bruising to lower back following a fall at work '“ 17/9/2001.
  • Have you any ongoing condition which would affect your employment? No '“ I get the occasional migraine but this does not affect my ability to work or usually require time off (treated with Zonig).

Since Mrs Laird had made no reference to stress or depression in the questionnaire, the council brought High Court proceedings against her alleging both negligent and fraudulent misrepresentation. The council was seeking damages of nearly £1m representing the cost of dealing with the various internal disputes involving Mrs Laird, and the ill-health element of her pension.

Rejected claims

In order to succeed in a claim of negligent and/or fraudulent misrepresentation the council had to show either that the misrepresentation was made carelessly, without reasonable grounds for believing in its truth (negligent); or that the misrepresentation was made knowingly, or without belief in its truth, or recklessly as to its truth (fraudulent). The High Court rejected the council's claims and, in relation to the specific questions that Mrs Laird responded to, the High Court found that they were not false statements, making the following observations:

  • Answering 'yes' to the question of whether she normally enjoyed good health was reasonable as she did normally enjoy good health. When she was depressed obviously she did not enjoy good health, but she had only been depressed for limited periods and this was not her 'normal' state.
  • Answering 'no' to the question of whether she had a physical or mental impairment was also reasonable as she did not have such an impairment in the technical sense under either the Mental Health Act 1983 or the Disability Discrimination Act 1995.
  • As regards her response that her last medical treatment related to bruising to her lower back, the court found that this was the last treatment that she had actually received from a doctor before completing the questionnaire. The question was not sufficiently specific as it did not ask whether she was currently taking medication (she was taking anti-depressants at the time), but merely asked the last instance of medical treatment.
  • Finally, the court found that answering 'no' to the question of whether she had an ongoing medical condition was reasonable. A reasonable person in her position would not have regarded herself as suffering from an ongoing medical condition or a condition that would affect her employment.

Where there are broad questions this judgment makes clear that the court will be satisfied if the individual has given 'a' correct answer, even if there is more than one potential answer. Here, there was no 'sweep up' question dealing with anything else health related which may be relevant to the decision to recruit.

Those advising employers need to ensure that, in order for the questionnaire to have real value to the employer, it is tightly drafted, leaving no scope for ambiguity. While there may be few employers who would bring this type of claim, advisers will want to make sure that employers can get the information they need to ensure the individual is able to perform the role they are being recruited for.

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