Employment Law

You could be forgiven for believing that the only problems arising out of employment law at the present time are those relating to redundancy, lay off and short time working, or issues to do with swine flu.

Even so life goes on and an interesting case has recently been reported where an employer has sued a former employee to recover compensation for loss suffered throughout the course of the employment relationship, alleging that the employee had misrepresented herself in a pre-employment medical questionnaire as being in excellent health when in reality she was not.

The employer in fact lost the case just before the High Court on the basis that the questions the employee had been asked had been in fact answered properly, so even though the employee had had periods of depression and at the time of her application for employment was still taking antidepressants, nothing in the medical questionnaire needed her to disclose those facts and as a result the answers she gave to the questions had been in essence correct, and didn’t give rise to misrepresentation.

The lessons to be learned from this matter is the significance of properly drafting a pre-employment medical questionnaire in order to establish actual facts in relation to an application for a senior position.

Consequently, if correct consideration had been given to the nature of the questions to be raised, the questionnaire need to have contained questions requiring a prospective employee to disclose his or her past periods of depression, so for example, a question asking whether the prospective employee was taking any medication, would have obliged her to disclose at the time of her application for employment if she was still taking antidepressants.  It also turns out that there was no catch all question calling for disclosure outside the questions in fact asked. So to ask for any other detail in a person’s history or circumstances which might impact the employer’s choice to give employment would indicate a requirement to disclose any past mental health troubles.

Employers ought to be quite careful just before rejecting job applicants on the basis of medical disclosure, so as not to fall foul of the Disability Discrimination Act 1995.  Guidance need to usually be taken just before making any particular decisions on employment.  For further employment law advice please contact the ELAS team on 0161 785 2000.