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Failure to mention medical history was not misrepresentation

Posted on 22nd June 2009
Case law

Cheltenham Borough Council attempted to argue that a senior employee's failure to provide details of her history of stress and depression in a pre-employment medical questionnaire was fraudulent and negligent misrepresentation. The High Court rejected the argument and decided that the answers given by the employee were not false or misleading and the claim for over £1million in damages failed.

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her answers were true and did not misrepresent her health

Cheltenham Borough Council v Laird [2009]

Background

The employee, Mrs Laird, had suffered from short episodes of stress-related depression between 1997 and 2001. During this time she had three months' absence and was on regular medication.

Mrs Laird applied for and was offered the post of managing director of the Council. The appointment was subject to a satisfactory medical questionnaire. Mrs Laird completed a pre-employment questionnaire. Her replies confirmed that she was normally in good health, did not have a physical or mental impairment, last had medical treatment in 2001 (following a fall) and did not have any condition that would affect her employment. On the basis of her replies Mrs Laird was appointed on an annual salary of £75,000.

After being in the post a few months, disciplinary allegations were made against Mrs Laird and she was placed on suspension. As a result of the allegations and her suspension Mrs Laird began to suffer from stress and depression again. In August 2005 the Council advised Mrs Laird that they regarded her contract of employment as frustrated because she continued to be unwell and unable to participate in the disciplinary and (by now) grievance procedures. Mrs Laird left her employment and the Council granted her an ill-health pension.

The Council sued Mrs Laing on the basis that she had failed to mention her history of stress and depression in the pre-employment questionnaire and that this amounted to fraudulent or negligent misrepresentation which induced the Council to employ her.

The Council claim was for about £1 million being the cost of dealing with the disciplinary and grievance issues and funding Mrs Laing's ill-health pension.

The decision

The High Court decided that Mrs Laird's answers were true and therefore did not misrepresent Mrs Laird's health. In any event the Court said that even if the answers had been wrong, there was no misrepresentation because Mrs Laird believed them to be true.

The Court made it clear that the pre-employment questionnaire was badly drafted and Mrs Laird's interpretation of the questions was fair and reasonable. Even the Council agreed that the form was not well drafted! The Court said it was for the Council to make the questions clear. It was not for the employee to guess at the information asked for.

In practice

The key is careful drafting of the questions to ensure that the information needed is actually obtained. If this case raises any concern, you should review any medical questionnaires used and if necessary amend the questions.

Please contact us if you would like us to review your recruitment forms and questionnaires, including job application forms.

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