The High Court has rejected a local council's claim for £1m in damages against its former managing director and held that her failure to mention her history of stress and depression in her pre-employment medical questionnaire did not amount to fraudulent and negligent misrepresentation. The council could not recover damages for the "extraordinary expenses", such as her ill-health pension, that it would not have incurred had it employed someone else (Cheltenham Borough Council v Laird).

Mrs Laird applied for the position of managing director with Cheltenham Borough Council (CBC) in November 2001. At the time of her application she was taking medication following her third episode of stress-related depression. She was offered the position subject to obtaining medical clearance from CBC's medical adviser. She made no mention of her history of stress and depression or of her anti-depressant medication when completing a medical questionnaire. Medical clearance was granted and she began work for CBC.

Some time later, she began to suffer from mental health problems once again and was absent from work until, in 2005, she was granted an ill-health pension. Following this, CBC discovered that she had made no reference to stress or depression in her pre-employment medical questionnaire and brought High Court proceedings against her alleging negligent and fraudulent misrepresentation in an attempt to recover its loss.

Rejecting CBC's claim, the High Court held that there was no misrepresentation as the statements that Mrs Laird had made in response to the questionnaire were not false. The wording of the questions should be interpreted objectively, as a reasonable person in Mrs Laird's position would have understood them. If the questions were unclear and there was more than one meaning that might reasonably be given, an answer correctly addressing any reasonable interpretation would be considered to be true. Each answer that Mrs Laird had given was thus correct. Even if her statements had been inaccurate, she had honestly believed them to be true and had not deliberately withheld information or misrepresented the facts, either fraudulently or negligently.

Impact on employers
Pre-employment medical questionnaires can be a useful way of extracting knowledge about problematic medial conditions or disabilities. CBC's position might have been stronger if its questionnaire had been better drafted.

Employers need to think carefully about how questions are put so that a new recruit who, unlike Mrs Laird, did intend to be less than forthcoming about their medical history, would either have to give full and accurate answers or resort to giving false information which may come back to haunt them later.

Generally, using information about medical history in recruitment means that employers must be alive to the possibility of disability discrimination and the obligation to make reasonable adjustments.

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