Telling porkies

The recent non-disclosure case affecting Cheltenham Borough Council could have repercussions for HR departments throughout the sector.

The CV should be a written statement of facts and abilities that enable the employer to have sufficient information to select the best candidate for a particular job. However, in order to make a good impression on the prospective employer an applicant may be tempted to exaggerate their past accomplishments and omit anything that they consider negative about themselves.

Even before the recession hit a study carried out by the pre-employment screening company, Risk Advisory Group, showed that half of all CVs contain some sort of lies while one in five feature serious misrepresentations. As unemployment figures increase, this situation is likely to get worse as the job market becomes more and more competitive.

What should an employer do? The best way to prevent being taken in by this is to take steps to check the information given. Carrying out checks may appear onerous, but there are potentially costly consequences if a candidate bluffs their way into a position for which they are not suited.

Counting the Cost

The non-disclosure of previous sickness absences by a job candidate was an issue that made headlines in the recent case of Cheltenham Borough Council v Laird. This concerned an allegation that when Christine Laird applied for the post of managing director she withheld the fact that she had previously suffered from three bouts of severe depression. This had resulted in the Council being deceived into believing she was medically fit to do the job. The Council’s claim was that this deceit cost them nearly £1 million in sickness related payments and subsequent legal costs.

The case raised a number of important issues regarding the recruitment process and the duties upon candidates to give details regarding their medical history.

Information about an individual’s health is confidential and sensitive data that can generally only be accessed with the express, freely-given consent of the individual. However there is nothing to prevent a prospective employer from asking a job applicant detailed questions relating to their mental or physical health if it is considered relevant to the job. The applicant who refuses to answer questions or to attend any medical examination that is required will be unlikely to proceed far in the selection process and the employer will not be acting unlawfully by rejecting them. On the other hand if the applicant does reveal certain medical details that lead to them being rejected it could open the door for claims to be made.

Disability discrimination protection

The employer upon being informed of any mental health problem must be careful not to jump to any conclusions as to the candidate’s suitability for the post. It should be taken into account that potentially the candidate will have a disability and will be able to claim protection against discrimination under the Disability Discrimination Act 1995.

Disability discrimination protection applies to mental health conditions in just the same way as it applies to any physical condition. Exactly the same test applies as there is no longer a requirement that the mental health condition must be clinically well recognised. The condition must simply be long-term and have a substantial impact on the individual’s ability to carry out normal day to day activities. A wide range of common mental illnesses may be covered including dementia; depression; bipolar disorder; obsessive compulsive disorder; schizophrenia or self-harm.

Where there are concerns about the applicant’s suitability for the post further medical evidence should be sought to gain clarification of the potential risks. One notable example was the case of Mr A v London Borough of Hounslow 2001. In this case a job applicant had been offered and had accepted a technician’s post in a school. However the applicant’s responses to a medical questionnaire stated that he had suffered two episodes of schizophrenia that had resulted in his hospitalisation. A subsequent medical report revealed that during these episodes the applicant had complained of hearing voices and had been recorded as having fantasies of mass murder. The report concluded that he had been fine for the last eighteen months but ‘the possibility of a relapse cannot be ruled out.’ Even though the applicant had already been put on the pay roll the school decided that given the enormity of the harm that would occur in a school if he was to relapse and act on his fantasies he had to be dismissed. A claim for disability discrimination was dismissed on the basis that the school’s actions had been justified in the circumstances.

Non-disclosure of health problems

Despite having statutory protection against discrimination some applicants may consider that their previous health problems are not something that they want to disclose to a prospective employer but rather than refuse to answer they deny that they have suffered health problems. In this situation the applicant risks being seen as dishonest by an employer who subsequently discovers the truth.

This may lead to the employee being dismissed or potentially even being subject to claims for compensation as in the Laird case. However all the circumstances have to be taken into consideration as dismissal in these circumstances may provide grounds for claims of disability discrimination and unfair dismissal too if the employee has over a year’s service. An investigation should be held and the employee asked why they withheld the information.

Medical Questionnaires

The High Court dismissed the claims of the Council in the Laird case. In reaching this decision the Court focussed on the wording of the Council’s medical questionnaire. Mrs Laird had answered ‘yes’ when asked if she normally enjoyed good health. She had replied ‘No’ when asked whether she had either a physical and/or mental impairment.

She did not mention her previous bouts of depression. However it was found that she had not given any false information or misrepresented her health.

The term ‘impairment’ is used in the discrimination legislation as reference to someone who has a disability. Yet many people suffering from considerable health problems would not consider that they have an impairment or are disabled. In the case of Department of Constitutional Affairs v Jones 2007 it was recognised that a disabled person with anxiety and depression problems could be naturally reluctant to consider themselves as disabled. Dismissal in these circumstances carries with it a big risk of a successful discrimination claim.

The Council’s problem was that the questionnaire was poorly drafted and the way the questions were phrased meant they were open to interpretation in different ways. A medical questionnaire should be drafted in such a way as to ensure that it removes any doubt as to whether the information should be disclosed. It would be impossible to directly address every type of illness but at the least there should be a sweep up question along the lines of ‘Is there anything else in your history or circumstances which might affect our decision to offer you employment?’ or ‘Have you have visited your GP in the previous twelve months in connection with stress, depression, anxiety or any other mental health issue?’.

If the candidate provides for false information in relation to such direct questions it could be seen as misrepresentation and give grounds to fairly reject the applicant or dismiss an existing employee on grounds of breach of trust.

Guy Guinan, Partner
Employment team, Halliwells LLP