Employees & HR

Pre-Employment Medical Questionnaires

The following article is reproduced with kind permission of Gemma Herrick of Brachers Solicitors and succintly discusses the legal implications of pre-employment medical questionnaires

How much do applicants have to say? The High Court has recently held that an employee did not make misrepresentations when failing to mention a history of stress and depression in a pre-medical questionnaire. Ms Laird had been on anti-depressants during three episodes of stress related depression between 1997 and 2001 and remained on them until February 2002. In November 2001 Cheltenham Borough Council offered her the position of managing director 'conditional on medical clearance'. The employee did not mention depression or a history of stress and said she had enjoyed good health. She was passed fit for the job and started in February 2002

Shortly after this she was suspended from work and subject to investigatory proceedings. A psychiatrist reported Ms Laird unfit to undergo the investigation due to mental health problems. Ms Laird then retired on an ill-health pension. The council commenced proceedings against the employee alleging negligent and fraudulent misrepresentation in completing the medical questionnaire. The High Court rejected the council's argument on the basis that , while the offer had been conditional on completion of the council's questionnaire, the employee's answers had not been untrue and were therefore not misrepresentations

There was a detailed analysis of the way that the council's questions had been posed and the nature of Ms Laird's illness, concluding that a reasonable person with episodes of depression would consider themselves normally to have good health. The moral of the case for employers is that if they want to elicit precise and clear answers, they should ask direct and specific questions. The more open and vague the questions, the easier it will be for emplyees to mask adverse medical history in a general answer

This specific questionnaire had no 'sweep-up' question either, such as "is there any aspect of your medical history which might affect an employer's decision to offer you employment?" Such questions should, of course, be carefully considered before being asked, since they may leave an employer vulnerable to a claim for disability discrimination

Gemma Herrick is an Employment Solicitor with Brachers Solicitors. Gemma did the second seat of her training contract in the Employment and HR Team at Brachers and returned in the final stages of her training, qualifying into the team in September 2009.  Gemma advises on a broad range of employment and HR issues working particularly closely with local businesses.  She also represents companies and individuals in Tribunal claims as well as advising on compromise agreements