Pre-employment screening: Unmasking the truth

Although the occupational health (OH) profession relies on accurate data, there is always the lie by omission for those who are committed to telling less than the truth. Finding the truth can require something of the skills of a detective, skills perhaps found more in fiction than in learned texts on the technical and scientific shelves of bookshops.

A little light reading may be found on the factual side: there is murder and mayhem, how to become an economic success, cookery, dog-training, secrets of the Civil Service, and biographies galore. Whatever is contained within that infinite choice, make no mistake: you can and do judge a book by its cover.

Which is why there is no section on OH at the airport or in the station. No series in fact or fiction about the glamour of life at the OH front line. The Miss Marple of employee healthcare has waited until now to be created, with the sudden highlighting of the lie by omission, or the omission of the truth caused by not asking the right questions.

Employee vetting

What we are talking about here is nothing more nor less than employee vetting, the OH version of what happens in jobs where the employer needs to be sure that the new candidate is not a member of an unacceptable political party or in an unholy alliance with a political enemy or burdened with current criminal convictions. As far as health is concerned, the checks relate to the employee’s fitness for work and ability not only to do the job they are employed to do, but to do it regularly, even if a few reasonable adjustments have to be made. Absence from work is the enemy here.

Employee vetting was hurled into the spotlight by Cheltenham Borough Council v Laird, a case heard in the High Court over several weeks in the spring of 2009 and rumbling on with appeals and cross-appeals, the most recent of which were turned down at the end of November 2009. Mrs Laird did not disclose a long-standing history of depression in her pre-employment questionnaire during the course of her application for a high-level post at the council.

Her subsequent conduct and absences from work together with the cost of dealing with her employment difficulties cost the employer more than £1m, whereupon it sued her for that amount – and lost. Technically, the score was Council 0, Laird 1, but Laird was liable for a huge amount of the costs.

The story has all the elements of fiction. The opening words of the judgment, which runs to nearly 100 pages, are: “This is a novel case.” Only the word “case” separates the fact of what happened from the almost fictional scenario.

The council considered that the non-disclosure amounted to a lie by omission. But the sting in the tail is that the direct question was not asked even though the job offer was conditional on medical clearance being obtained by the council’s medical adviser based on completion of a health questionnaire.

The recorded answers did not refer to any history of depression, nor to Laird taking any anti-depressants. From the information provided in the questionnaire, she was found by the adviser to be fit. However, during the course of investigations into her absences and other matters, a consultant psychiatrist interviewed her and found from her medical records that she had been on long-term anti-depressant medication.

After a long period of absence, she took ill-health retirement, whereupon the council undertook legal proceedings to recover the cost of providing replacement services during her period of office and alleged that she had been given the job based on her fraudulent or negligent misrepresentation of her medical history through her answers in the questionnaire.

The court had to take into account whether the contract was actually completed on the basis of the questionnaire and the assessment of fitness for work. This involved looking at the questions and “whether [the council] had only been seeking statements of subjective and honestly held belief”. Consequently, the court had to review whether Laird had lied or if, even if the answers were false, she had honestly believed that what she said was true.

Read between the lines

From the OH perspective, the key feature was whether the questionnaire would have been construed by a reasonable person in Laird’s position in the way that she had done. It is worth quoting from the law report to see how the court put it: “It was for the [council] to make it clear and unambiguous, and it could not reasonably expect the candidate to do its job for them. The candidate’s stated duty was to answer the questions asked correctly to the best of their ‘ability and knowledge’ and not wilfully to withhold material facts. A non-disclosure would only give rise to a right of termination if it related to a material matter which had been ‘wilfully’ withheld. There was no general duty of disclosure and the duty acknowledged was expressed in terms of ‘wilfully’ withholding. ‘Wilfully’ meant a deliberate or at least reckless withholding.”

And here are the crucial questions and answers:

Q: Do you have either a mental and/or physical impairment?

A: No

Q: Date when you last had medical treatment and reason.

A: Bruising to lower back following a fall at work 19/9/2001

Q: Have you any ongoing condition which would affect your employment?

A: No – I get occasional migraine but this does not affect my ability to work or usually require time off work.

Nothing wrong there, given that the “wrap-up” question was along the lines of whether the answers were true to the best of her knowledge and belief. Perhaps something along the lines of asking what actual conditions had been suffered over a specified period of time might have helped; or what medical treatment had been provided over that time; and something more specific about why she had given the answers. “To the best of my belief” arguably sets up a subjective test. “To the best of my ability” might be better since it implies that the answers are based on knowledge of one’s own medical history.

The “deliberate or at least reckless withholding” brings us back to the lie by omission. If the questions are vague, clear answers cannot be given. It is history now that the court found unambiguously, as you would expect after having dealt for many days with vagueness and obscurity, that Laird’s answers on the medical questionnaire were neither false nor misleading. And even if they were, she had honestly believed that her responses were true. No fraud. No negligence.

Good questions

Unless the right questions are asked, the employer will not know whether there is a disability or medical problem in the offing that could, perhaps, be avoided. It is established law that a contract does not become binding if the offer is conditional. The Laird case confirms that it remains safe to make an offer which depends on obtaining medical clearance but the employer is entitled to expect that the report will be reasonably accurate and based on appropriate and truthful information.

In Baker v Kaye, the claimant who failed a pre-employment medical did not succeed in his claim in negligence against the OH doctor whose test results established exceptionally high levels of alcohol metabolites (not replicated in subsequent independent tests). There was no duty of care established between the job applicant and the doctor but, in any event, the doctor had given advice to the potential employer which was reasonable in light of the information available.

Kapfunde v Abbey National and Daniel concerned the doctor’s assessment of risk of future absence from work based on the fact that the job applicant suffered from sickle cell anaemia. The Court of Appeal held that the doctor did not owe her a duty of care in assessing that risk. However, each case is fact sensitive and the Laird judgment points out that a duty of care can arise on the employee to the employer in the completion of the questionnaire.

On the one hand, it is an HR management issue to ensure that, at the earliest stage of advertising a job and all through the application, interview and offer stage, there will be reliance on clearance by the OH department or provider. It is up to the employer to decide, probably with OH advice, on the questions in any questionnaire to ensure there is no opportunity for the lie by omission or avoidance of issues. A direct lie speaks for itself: gross misconduct and an invitation to the door. To get at the truth, it is appropriate to ask if there is any reason why an employee may not be fit for the post they have applied for. That goes hand in hand with making any necessary reasonable adjustments in case there is a disability issue to be addressed.

It is also important to place a duty of care squarely on the job applicant’s shoulders in completing the questionnaire. It is their responsibility to provide truthful and accurate answers so that the employer can assess what the future holds and what steps need to be taken to ensure a future. Simply asking if a person needs any reasonable adjustments to cope with a disability is not enough: the range of what is on offer must be set out, if necessary in a pamphlet within the application pack.

There is concern in the profession that having a detailed questionnaire will amount to a detriment to those suffering intermittent psychological disorders. That must be looked at in the light of current disability legislation which specifically provides protection from any form of discrimination on the grounds of conditions which have significant effects on a person’s ability to carry out normal day-to-day activities. The purpose of the information is to enable reasonable adjustments to be made, not to exclude people from employment unless there is some justification for doing so.

Broadening horizons

It is of particular interest that the court found it reasonable for Laird to say that she considered herself to be in good health normally: her bouts of depression were intermittent and she had truthfully said that her last course of medical treatment was for a back injury from which she had recovered. At the time of answering the questionnaire, she could say that she was not suffering from a physical or mental impairment.

So, as far as questionnaires are concerned, perhaps it’s back to the American McCarthy style of investigation of the 1950s: “are you now or have you ever been…”. Now we’ll paraphrase from “…a member of the Communist party” to “…in bad health? Or taking or have taken medication in the past five years for any medical condition? Or suffering from a medical condition? Or in need of any adjustments to enable you to carry out work of a particular kind?”

There probably will be lots more questions, worded more simply to fit the health scenario. It will make it so much easier to get the straight answers on which the employment contract depends.

Linda Goldman, BDS, LLB, is a barrister at Henderson Chambers, Temple. Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.

Any enquiry about this article may be made to Joan Lewis at Telephone 020 8943 0393

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