The position of employees who fail to disclose medical conditions relevant to their employment has been highlighted by the tragic events of 22 December 2014, with six people being killed when the driver of a bin lorry apparently blacked-out and lost control of the vehicle on a busy Glasgow street.
There are three primary issues for employers to consider when pre-existing medical conditions which seriously affect employment come to light:
- Was the offer of employment conditional on a satisfactory medical report or questionnaire?
- Were answers provided in the questionnaire or in examination false or misleading?
- Can employees be disciplined or dismissed where a pre-existing medical condition comes to light subsequently?
Conditional offers of employment
It is common for offers of employment, especially in senior or health and safety critical roles, to be made conditional on a satisfactory medical examination or satisfactory answers to a medical questionnaire. Although the Equality Act 2010 largely prohibits pre-employment health questions, they can be asked of successful or short-listed candidates, or earlier if the ability to safely carry out certain activities is an intrinsic part of the role. Employers should ensure any such questions or enquiries are relevant to the role and not asked of every successful or shortlisted applicant, otherwise claims of disability discrimination may result.
Obtaining medical reports on every employee who, for example, is employed to drive as part of his duties may place an unmanageable financial burden on employers, so questionnaires may be preferred. If they are to be relied upon it is vital that they are fit for purpose and that offers of employment are made expressly conditional on satisfactory responses.
If the answers or report are not satisfactory, the offer can be withdrawn. Care does need to be taken, however, if the answers or report disclose a disability. Employers should consider reasonable adjustments and ensure whether withdrawal of the offer can be objectively justified. It may be worthwhile taking advice to make sure.
False and misleading answers
It is important for employers to ensure that questionnaires are fit for purpose. In the case of Cheltenham BC v Laird [2009], an employee who had failed to disclose her depressive illness and was subsequently medically retired, was found not to have given false or misleading answers in a medical questionnaire where she failed to mention a history of depressive illness. It was found that the questionnaire had been badly drafted so that the failure to disclose past history was not actionable. The court recommended a mop up question along the following lines: ‘Is there anything else in your history or circumstances which might affect our decision to offer you a job?’
In summary, employers who use medical questionnaires should review the wording to ensure they are fit for purpose, relevant to the role and add a mop up clause if required. Answers should be scrutinised and followed up if needed.
Discipline or dismissal
If an employee is found to have lied or deliberately misled an employer in the answers provided to a medical questionnaire or on an application form, employers are likely to be justified in taking disciplinary action up to and including dismissal for gross misconduct. It is important nevertheless to follow a fair procedure and to allow the employee a fair opportunity to put their side of the case and any relevant mitigation.
It is also useful to specify in such documents that any failure to provide accurate and honest information may result in disciplinary action.
If you would like any further information on employment issues, please contact a member of our team for advice.
