The failure of Mrs Laird’s appeal against the costs order made in her dispute with Cheltenham Borough Council (CBC) provides a good opportunity to revisit the lessons learnt from the original action.
The facts are set out in detail in our legal update on the case, but briefly:
- CBC advertised for a new chief executive.
- Mrs Laird applied and was offered the job subject to satisfactory completion of a medical questionnaire.
- Mrs Laird completed the questionnaire but did not disclose some previous instances of stress and depression.
- After a change of leadership at CBC, Mrs Laird and the new leader experienced a personality clash, with the result that Mrs Laird spent a considerable period of time signed off work sick due to depression.
- CBC sued Mrs Laird for considerable damages due to her failure to declare her history of stress and depression. CBC was unsuccessful, mainly due to the inadequacies of its medical questionnaire.
- However, neither party emerged from the judgment without criticism and Mrs Laird was only awarded 65% of her costs. Mrs Laird was this week unsuccessful in an appeal against this costs order.
So, what lessons should local authorities learn from this case?
Use a pre-employment medical questionnaire that is fit for purpose.
The first and most obvious lesson concerns the use of medical questionnaires. Central to the CBC case was the wording of the CBC’s medical questionnaire, which did not, in the judge’s view, require Mrs Laird to disclose information about her history of stress and depression. It was common ground that the questionnaire was poorly drafted. In fact, in evidence the CBC’s own occupational health expert said that it was “quite inadequate”, and acknowledged that people might interpret the “not particularly well phrased questions in different ways”. Authorities should review their recruitment practices to ensure that pre-employment medical questionnaires:
- Cover all of the potential areas of concern unambiguously (but do not seek irrelevant information).
- Provide examples and explanatory notes.
- Include a sweep up question calling for disclosure outside the specific questions asked, such as: ‘Is there anything else in your history or circumstances which might affect our decision to offer you employment?'”.
Follow up on responses to the questionnaire.
Secondly, it is important to remember why a medical questionnaire is being used in the first place. The primary motive should not be to enhance the authority’s chances of successfully pursuing a misrepresentation claim at a later date, or to provide grounds for discipling an employee for being dishonest. The questionnaire must enable the employer to obtain and act on the information it receives. The answers should be reviewed and the authority should interview the applicant and obtain further medical evidence where necessary to be sure that a job applicant is physically or mentally able to undertake a particular role and to avoid the risk of employing someone who may be or may become unable to work. The questionnaire should not be filed away in a personnel file at the conclusion of the recruitment process not to see the light of day until the applicant goes on sick leave.
Take advice before acting.
A lesson arising indirectly from this case is that if a physical or mental impairment is identified it does not necessarily mean that an authority can simply revoke its job offer. Before taking any action authorities must consider the Disability Discrimination Act 1995, and in particular the duty to make reasonable adjustments where a job applicant is “disabled” (see Practice note, Disability discrimination).
Think twice before litigating.
The final lesson that has been learnt by CBC in this case is that litigation is extremely expensive and consideration should always be given to whether court action is:
- A good use of taxpayer funds.
- Likely to be counterproductive.
For further information on pre-employment checks, see Practice note, Recruitment: Pre-employment checks.