Legal Q&A: Failure to disclose illness

A recent court case highlighted the serious issues that can ensue if an applicant for a job fails too disclose details of a long-term health condition in a job application or at interview. When such a condition comes to light, the employer can face some difficult, not to say costly, choices. Whatever course the employer takes, it needs to be aware of the legal position on which to base that decision.

Q Does an employee have an obligation to disclose information about themselves?

A Unlike insurance policies where the applicant has a positive obligation to disclose information, employees do not have to provide information about themselves. If an employee chooses to provide information they should ensure the information is true and not misleading.

Q Does an employer have the right to ask prospective or new employees about their long-term or recurring medical/health conditions?

A An employer does not have any rights, as such, to request information from a prospective employee, but clearly, if the candidate wants the job, it would be wise to supply the information being requested as long as it is a reasonable and lawful request. To enable an employer to make reasonable adjustments for a disabled candidate to attend an interview or to carry out a role, the employer would need to ask relevant questions. It would be legitimate, for instance, to ask if they had a disability or any special needs to assess. For new employees, there are no rights for an employer to be provided with information. However employers can make it a condition of their offer of employment that certain information is provided to them.

If the post being filled requires the employee to meet certain medical requirements then the employer could ask the employee to complete an additional health questionnaire and make this and the successful medical assessment a condition of employment.

Q How does this apply to psychiatric or mental illnesses such as depression or stress?

A Depression can be a disability and stress a symptom of one, therefore, the employer may have to consider making reasonable adjustments. As these conditions can recur employees should also consider disclosing this at the outset.

Q If someone is taken on and it comes to light they have covered up a health condition, what steps can an employer take?

A If the employee has lied about their condition, the employer could argue there has been a breach of the duty of mutual trust and confidence. The employee’s employment could be fairly and lawfully terminated. The challenge for the employer is determining if the lie could justify termination and ensuring their actions are not discriminatory. If the employee provided the information as a condition of their employment and/or the employer relied on this information to recruit the employee, the employer could claim there has been a breach of the contract or a misrepresentation that led to the employer into entering into the contract. The employee could face a civil court claim to recover damages and to answer claims of fraud and negligence as has happened in the Cheltenham Borough Council High Court claim against its former managing director.

Q What are the risks of dismissing someone for failing to disclose details of a long-term health condition/illness.

A If the employer fails to follow statutory or contractual procedures, it would be exposed to a successful claim for automatically unfair dismissal. The employee could also argue they had been subjected to discrimination. The employer could defend its position by arguing the reason for the dismissal was not connected to any disability.

The employer would have to show it responds in a consistent way, ie, if anyone tells a lie when being recruited they would be treated in the same way. Given the view that many employees embellish their CVs and face no consequences, there may be issues demonstrating consistency.

Q Would taking action against an employee make economic sense for the employer?

A If an employee is dismissed as a result of being ‘economical with the truth’, the employee could bring a claim for unfair dismissal. Separately the employer could decide to take or threaten to take civil action to recover damages. This can lead to a settlement being reached. However, the employer may decide it wants to pursue a civil claim in any event, having concluded that the damages justify the litigation risk. However the employer has to consider if the employee is worth suing. If the employee has no money then there would be little value in pursuing a claim.

by Pam Loch, principal, Loch Associates

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