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Cheltenham Borough Council recently lost a controversial High Court action against its former managing director Christine Laird.
The decision raises many interesting issues. First, how much information must be disclosed to a prospective employer on a candidate’s medical history? Second, is it discriminatory for an employer to make decisions based solely on information provided in a medical questionnaire? And finally, what degree of sensitivity is there about disclosing a mental health condition to a prospective employer?
The council sued Laird for almost £1m, alleging she had responded fraudulently to questions on a pre-employment medical questionnaire. Laird was passed fit for the post by the council’s occupational health service, following the answers she provided in the questionnaire.
Unfortunately, Laird’s relationship with the leader and senior officers of the council deteriorated significantly within a year of her appointment, numerous grievances were raised by her and she was eventually granted ill-health retirement.
Prior to her application for the post, Laird suffered from anxiety and depression, from which she had made a recovery. In response to the question ‘Do you normally enjoy good health?’, she therefore replied ‘Yes’; and to the question ‘Do you have a mental impairment?’, she replied ‘No’. The council stated that had it known about Laird’s past medical history, it would never have employed her. The High Court rejected the claim as it found that Laird had answered the questions honestly.
One in four adults in the UK suffer from a mental health condition at some point in their lives. In some cases, it may be a short period of reactive depression. In others, it may be more long-term and chronic. In the current climate, City professionals, including lawyers, are feeling increased levels of stress and anxiety not only related to the demands of their roles but also uncertainty about the future. Some of them will seek advice, assistance and possibly treatment, which may include medication and counselling, and some may develop significant mental health problems due to their treatment at work.
owever, once they have been properly treated, most of these employees would answer questions about their health as Laird did.
Unfortunately, there is still a high level of stigma attached to mental health conditions. Many people do not disclose details even to friends, let alone to an employer. An employee is more likely to disclose a physical disability such as diabetes, than a mental illness such as depression.
In addition, many health screening questionnaires are badly designed and suggest the employer has an inadequate process for assessing a candidate’s health. Some questionnaires even suggest the employer has a blanket approach to reject candidates with certain conditions, which exposes those employers to significant disability discrimination claims.
There is also a sense that an employer will not be sympathetic to a condition such as stress or depression, which is sometimes interpreted as meaning that a person is ‘not up to the job’ or, even worse, they are malingering. Indeed, this attitude is quite widespread in the legal profession.
Recruitment decisions based on past medical history run the risk of uncapped claims for disability discrimination in an employment tribunal. The council’s comment that it would not have employed Laird would likely be considered strong evidence for a discrimination claim.
The case is a victory for those campaigning to end mental health stigma, but emphasises that some employers’ attitudes still have some way to develop.