Wrong questions, right answers
Date: 07 August 2009
Authors: Charles Pigott
Issue: Vol 159, Issue 7381
Categories: Features, Employment
The trial judge’s outline of the facts in Cheltenham Borough Council v Laird [2009] EWHC 1253, [2009] All ER (D) 188 (Jun) starts with a quote from the council’s recruitment literature, praising the attractions of Cheltenham’s gracious architecture and thriving cultural life.
Presumably it was intended to form an ironic backdrop to his 50,000-word judgment chronicling a long —and far from gracious—battle between the council and its former chief executive.
Ms Laird’s employment with the council started in early 2002 and ended, after almost continuous disputes and litigation, in 2005. Ms Laird’s health was increasingly under pressure, but finally broke down when she passed out with a particularly severe panic attack on being told she had been suspended.
She was later found to be eligible for early retirement on health grounds.
The medical evidence submitted on Ms Laird’s behalf demonstrated that she had previously suffered from depression. That prompted the council to apply for disclosure of her pre-employment health questionnaire, which had resulted in her being declared fit to serve as chief executive.
Action for misrepresentation
The wider interest of this litigation lies in the action the employer took once it discovered that the replies to the questionnaire did not reveal three previous episodes of work-related depression.
The council alleged that Ms Laird’s replies were fraudulent or negligent misrepresentations which had induced it to employ her. It claimed damages under the Misrepresentation Act 1967 of nearly £1m.
The heads of claim included legal expenses and additional costs associated with her early retirement, which it alleged would not have been incurred had it appointed another chief executive.
As the trial judge pointed out, an action based on a health questionnaire is unusual, if not unheard of, but it could as well have been based on an application form or a CV.
The questions
There were four material questions which are set out below with Ms Laird’s answers:
(i) “Do you normally enjoy good health?”—“Yes”.
(ii) “Do you have either a physical and/or mental impairment?”—No”.
(iii) “Date when you last had medical treatment and reason?”—“Bruising to lower back following a fall at work 17/9/2001.”
(iv) “Have you any ongoing condition which would affect your employment?”—“No, nb I get occasional migraine but this does not affect my ability to work or usually require time off from work.”
At the end of the questionnaire she signed a declaration that her answers were “true and given to the fullest of my ability and knowledge”.
Trial judge’s conclusions
For all four questions the ruling was that Ms Laird’s response was “the, or at least a correct, answer”.
The judge concluded that Ms Laid genuinely believed that she had made a full recovery from her latest episode of depression and had no reason to believe that her past medical history would be any obstacle to her making a success of her job at Cheltenham Council.
Reasonable care
While Ms Laird was under a duty to take reasonable care in compiling the answers, the fact that she was a lay person and not a health professional needed to be taken into account in assessing her answers.
It might be that a health professional would have concluded that she had a susceptibility to work-induced depression. But given that she had only had three months off work for depression in her life, it was reasonable for her to say that her health was normally good and that she did not suffer from any impairment.
That was the case even though she was taking anti-depressants when she completed the questionnaire, since she was not at that time undergoing treatment for depression. She had made a full recovery and was completing a “weaning-off” period to avoid withdrawal symptoms.
Implications
The lessons of this case are that health questionnaires need to be drawn up carefully, because any ambiguities are likely to be resolved in favour of the employee. One also wonders what the council would have done had the questionnaire revealed the full medical background.
Breach
One of Ms Laird’s arguments at trial was that the council would have been in breach of the Disability Discrimination Act 2005 (DDA 1995) if it had refused to employ her because of her medical history.
This issue was not explored fully, because Ms Laird’s own evidence was that she did not become a disabled person until two years later.
However, a blanket refusal to employ anyone with a history of mental illness is likely to leave an employer exposed to claims under DDA 1995.
Potential solution
One solution would have been to include suitable questions about her attendance record when requesting a reference from her former employer. We do not know what happened with Ms Laird’s references.
Her former employers were originally named as second defendants, presumably on the basis that their reference had been misleading, but the council’s claim against them was settled before trial.
Charles Pigott is a professional support lawyer at Mills & Reeve
Share this page
