Q and A

Employers often make a job offer conditional on completing a medical questionnaire. In Cheltenham Borough Council v Laird, the High Court said that the onus was on the employer to ensure the questions were not ambiguous, while the duty on the employee was to answer the questions to the best of their ability and knowledge and not wilfully to withhold material facts.

Basic facts

Before being confirmed in the post of Managing Director at Cheltenham Borough Council, Mrs Laird had to complete a medical questionnaire. As a result of her answers, she was deemed “fit” by Occupational Health Services and she took up post on 4 February 2002.

In May local elections were held which resulted in a change of political control from Conservative to Liberal Democrat. An atmosphere of mutual distrust developed between Mrs Laird and the new leader, which resulted in her bringing several grievances against him. For his part, he made various disciplinary allegations against her and several members of staff also accused her of bullying and harassing them.

She was suspended in late 2004 and a disciplinary panel was set up to hear complaints that had been made against her. However, a psychiatrist’s report in May 2005 stated that she was could not undergo the investigation because of the poor state of her health. This report also revealed that she had a history of depression which had been treated with anti-depressants. In March 2006 Mrs Laird retired on ill health grounds.

However, the Council then obtained a copy of her pre-employment medical questionnaire which did not mention a history of depression or stress-related illness. It brought proceedings against her for negligent and fraudulent misrepresentation, and claimed damages of almost £1 million for the time and expense incurred in investigating the disputes and for the cost of her ill health retirement.

High Court decision

The High Court agreed with the Council that the offer of employment was conditional on a satisfactory medical report, but concluded that there had not been any misrepresentation as Mrs Laird honestly believed that the answers she had given were true.

It said that the questionnaire (which was generally accepted to be poorly drafted) had to be construed objectively. In other words read in the way that any “reasonable person” in Mrs Laird’s position would have done. If it was ambiguous (so that more than one meaning could be given to a particular question) then an answer that correctly addressed either of those meanings would be true. The onus was on the Council to ensure the questions were clear and unambiguous. Mrs Laird’s duty was simply to answer the questions to the best of her "ability and knowledge" and not wilfully to withhold material facts.

The Court looked at the four main questions which had given rise to the dispute. When asked: “Do you normally enjoy good health?”, she answered “yes”. The court held that this was accurate because she was not normally depressed and a reasonable person in her position would have regarded herself as normally enjoying good health.

In response to the question about whether she had a physical or mental impairment, she answered “no”. Again, the Court said that this at least constituted “a” correct answer as she was not depressed at the time of filling in the form and did not have an impairment in the technical sense under the Mental Health Act or the Disability Discrimination Act.

In reply to the question “reason for last medical treatment”, she described treatment for her lower back. Although she had subsequently picked up a repeat prescription at the doctor’s, the Court decided that the question was not directed at whether she was taking any medication, and could easily be understood to be asking when she had last seen a doctor to address a set of symptoms.

Finally, when asked “Do you have an ongoing medical condition?”, she again answered “no”. This was also accurate because it was the vulnerability to depression that was ongoing, not the actual depression.