High Court, June 2009. Full decision: www.bailii.org.
Facts and decision
A job applicant did not reveal a mental health history in response to a questionnaire of the employer. She was appointed to the job, and the employer subsequently sued for damages. Its claim failed given the wording of the questions it asked. However, the case indicates that similar claims might succeed in future.
The defendant had a history of depression and stress-related illness. She successfully applied for a job as managing director of a local authority. In the course of recruitment process she completed a medical questionnaire saying yes she normally enjoyed good health, no she did not have a physical and/or mental impairment, and no she did not have an ongoing medical condition that would affect the employment.
There was subsequently an acrimonious dispute with a new leader of the Council. She brought greivances, and was subject to disciplinary proceedings. While these were pending she was off sick with stress for substantial periods, and was ultimately retired on an ill-health pension.
The Council sued her for damages, claiming she had made fraudulent or negligent mispresentations in her answer to the questionnaire, as she did not refer to her medical history. The Council said that had it known it would not have employed her, and sought to recover the time and expense it had incurred from the disputes with her and the cost of her ill-health retirement. The total damages claimed were nearly £1 million.
Held: the Council’s claim was turned down. The responses she had given were neither false nor misleading, given the wording of the questions. For example, she was ‘normally’ not depressed but in good health, and while her vulnerability to depression was ongoing the depression itself was not.
The questionnaire should be interpreted objectively, as a reasonable person in the employee’s position would have done, taking into account that she was a lay rather than a medical person.
This is not a DDA case, but it affects the rights of disabled people. Had the questions been worded differently (but her answers the same), it seems that the employer might have succeeded in its claim for at least part of the damages. Following this High Court decision, employers are likely to be more careful in drafting their medical questions, particularly as regards mental health but perhaps more widely. Further claims for failure to disclose a disability may follow. (I won’t go into the prerequisites for an employer to have a valid claim.)
The judgement comments at paragraph 3: “The particular part of the application involved in the present case was the medical questionnaire, but it could as well have been the application form or a CV.”
In the large majority of cases, I imagine it will not be worth an employer’s while to claim damages, partly because the amounts involved will often be fairly small. Comeback against an employee for non-disclosure – if there is any comeback at all! – may in practice be limited to terminating the employment if that is consistent with the DDA and other legislation.
Also, it will often be much more apparent to an employer at an interview that a job applicant has a stammer, even if the job applicant has not mentioned it, than it is that they have a mental health history for example.
Even so, the case may perhaps give pause for thought to a job applicant thinking of not disclosing an impairment if an employer asks them to do so.
Update: Since this case the Equality Act 2010 has restricted an employer’s ability to ask pre-employment health questions.
See further Responding incorrectly to a question on disability.