Key points
Employers should ensure that their medical questionnaire is drafted in such a way that it captures the information required and is clear for all to understand. This is, primarily, so that an informed judgment can be made based on accurate and complete information whether an applicant is suitable for a role.
What you should do
- Draft questionnaire questions as clearly as possible so they can only be interpreted in the way intended.
- Include example answers and explanatory notes to illicit detailed and relevant responses to questions.
- Include a final sweep-up question to capture further relevant information that has not been disclosed earlier in the responses. The example given by the court was, “Is there anything else in your history or circumstances which might affect our decision to offer you employment?”.
- Consider your duty to make reasonable adjustments under the Disability Discrimination Act when considering the job application of someone who could be considered disabled.
Fareham College Corporation (FCC) appealed against an Employment Tribunal’s finding of disability discrimination arising from a failure to make reasonable adjustments and disability-related discrimination in respect of Mrs Walters’ dismissal.
Mrs Walters suffered from two separate conditions and medical reports showed that as a result of her illness she would be absent for more than nine months. The college’s sickness absence policy provided for it to consider dismissal in a case where sickness absence was envisaged to extend beyond nine months. The college considered a phased return to work but decided against this and dismissed her.
Phased return
FCC accepted that the refusal to allow a phased return to work amounted to a “provision, criteria or practice” and that the college had knowledge of Mrs Walters’ disability. However, the college argued that the Tribunal had failed to compare Mrs Walters with a non-disabled person who was dismissed after nine months’ sickness absence. The EAT concluded that it is not always necessary to undertake a comparative exercise in a reasonable adjustments claim and that it was not necessary in this case.
Further, the EAT stated that the comparator group in this case was other employees who are not disabled and who are able to attend work and carry out their jobs. The EAT held that the claimant was unable to attend work due to her disability and was therefore unable to comply with the college’s criterion, which was to resume her work without a phased return. Therefore, the EAT concluded that she was placed at a substantial disadvantage in comparison with other, non-disabled employees.
Non-disabled comparator
In respect of the disability related discrimination claim, the EAT concluded that the Tribunal had not directed itself correctly because it did not consider a non-disabled comparator in accordance with the case of Lewisham v Malcolm. However, the EAT declined to allow this point of appeal and remit it to a Tribunal because it considered that the dismissal was an unlawful act of discrimination by reason of the failure to make reasonable adjustments and that it was impossible to disentangle the failure to make reasonable adjustments from the decision to dismiss.
Cheltenham Borough Council was unsuccessful in its High Court claim for damages of nearly £1m arising from alleged false answers given by Mrs Christine Laird, its former managing director, on her pre-employment medical questionnaire. In finding for Mrs Laird, the court has delivered a stark warning to employers regarding the wording of pre-employment medical questionnaires.
Before she joined the council, during 1997 to 2001, Mrs Laird (right) suffered three bouts of stress-related depression, causing her to take a total of three months’ sick leave and to take medication until February 2002.
Medical clearance
In January 2002, following Mrs Laird’s application, the council offered her the role of managing director “conditional upon medical clearance being obtained” from its medical adviser. Mrs Laird duly completed a medical questionnaire which she sent to the adviser, answering:
- 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 back following fall at work 17/9/2001
- Have you any ongoing condition which would affect your employment? No.
Mrs Laird started work for the council in February 2002. In May 2002, a new leader of the council was elected with whom Mrs Laird had a difficult working relationship. Following grievances raised by and against Mrs Laird and a lengthy period of sickness absence due to depression, Mrs Laird’s employment was terminated by the council in August 2005. Subsequently, she was granted an ill-health pension due to permanent incapacity.
The council later reviewed Mrs Laird’s medical questionnaire and began proceedings claiming fraudulent or negligent misrepresentation by her and seeking damages due to “extraordinary expenses that would not have been incurred had some other managing director been employed”.
The High Court held that Mrs Laird’s employment was conditional upon completing the questionnaire and being assessed as fit for appointment.
Poorly drafted
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Both parties agreed that the questionnaire had been poorly drafted by the council. Therefore, it was held that the wording of the questionnaire should be construed objectively, with any ambiguity being taken to be in Mrs Laird’s favour as it was for the council to make the questions clear.
The court also found that:
- Mrs Laird did ‘normally’ enjoy good health as she was not depressed for the majority of the time
- She did not have an impairment in the technical sense, for example under the Mental Health Act or Disability Discrimination Act
- Mrs Laird’s collecting and taking of prescribed anti-depressants was not her latest treatment as it was continuation of an earlier treatment
- She reasonably regarded herself as not having an ‘ongoing condition’ that ‘would’ affect her employment.
- The court held that Mrs Laird’s answers were not misleading given the questions asked. The council’s claim failed.
