Christine Laird hit the headlines earlier this year when she was
sued by her former employer Cheltenham Borough Council for nearly
£1m in a claim that she had misled it in her job application. Laird
was the managing director of the Council.
The High Court has said that she did not deliberately mislead
the Council in answering a medical questionnaire, even though she
made no mention of previous depressive episodes.
Laird's time at the Council was marked by a series of
increasingly bitter disputes with councillors, staff and unions and
she spent much of her tenure off sick with stress. Unions claimed
she bullied staff and the Council leader told a colleague that her
behaviour had the Council "at breaking point".
The High Court said that Laird did not directly lie, and that
the questions asked by the Council were capable of being answered
in different ways. Laird's answers were not untruthful, it
said.
The Council had asked 'do you normally enjoy good health', to
which Laird had answered 'yes'. "When depressed she did not enjoy
good health. When not depressed, she did. But she was only
depressed for limited periods prior to January 2002 and this was
not her 'normal' state of health," said the ruling. "A reasonable
person in Mrs Laird's position would regard herself as normally
enjoying good health. This was the or at least a correct
answer."
Laird answered 'no' to the question 'do you have a physical or
mental impairment?', which the Court also said was a correct
answer. "She did not have an impairment in the technical sense –
i.e. under the Mental Health Act or the [Disability Discrimination
Act]," it said. "She had a vulnerability to episodes of depressive
disorder but she did not have an ongoing depressive disorder…this
was the or at least a correct answer."
Laird, who was taking anti-depressant medicine, also declared
that she had no ongoing medical condition which would affect her
employment.
"Medically, whether Mrs Laird had an ongoing medical condition
is a difficult question," said the ruling. "She had a vulnerability
to depression but not one that was manifesting itself at that time.
The vulnerability was ongoing but not the depression."
"It is standard practice to go on taking anti-depressants for a
considerable period after there has been a period of depression. It
is not in itself indicative of any ongoing problem," said the
judgment. "This was the or at least a correct answer."
The Court found that regardless of her actual condition, Laird's
assessment of her health was honest. "For this purpose what matters
is Mrs Laird's understanding of her medical condition rather than
her actual condition. Her understanding was that she had suffered
attacks of anxiety and stress due to specific events, but not that
she had suffered or was suffering from a depressive disorder," said
the ruling.
The Court said that Laird had not filled out the questionnaire
fraudulently, nor had she wilfully withheld important
information.
"Given the ambiguity of the questions asked and Mrs Laird's
reasonable understanding of her medical history, as I have found it
to be, it was not negligent of her to answer the questions as she
did," said Mr Justice Hamblen in his ruling.
Laird had argued that the offer of a job was unconditional, and
so the medical report was irrelevant. The Court rejected that and
found that the job offer was conditional on her medical fitness,
but that she had filled in the questionnaire honestly and without
fraud or negligence, so the Council's claim failed.
The Court found that if Laird had disclosed her medical history
she probably would not have been offered the job, because she was
offered it after winning a Council vote of just 18 votes to 17.
Simon Horsfield is an employment law expert at Pinsent Masons,
the law firm behind OUT-LAW.COM. He said that employers should be
careful about how they deal with information about a potential
employee's medical history.
"The reality is that many employers will not offer a job to an
applicant with a poor sickness record, but this may inadvertently
expose the employer to claims under the Disability Discrimination
Act if the reason for the sickness absence relates to a person's
disability: an employer will discriminate against a job applicant
if he refuses to offer him employment because he is suffering from
a disability," he said.
"An employer must consider whether to make reasonable
adjustments for a disabled job applicant, both to the interview
process and to the terms of any job offer. This possible
exposure highlights the need for recruitment managers to be trained
on this area of the law," said Horsfield.
The Court, though, said that in this case the facts meant that a
DDA claim by Laird would have been unlikely. It said that if Laird
had been denied the job on the grounds of her past depression she
would not have been able to make a claim for discrimination under
the DDA because by her own evidence she was not disabled at the
time of applying for the job.
"It was common ground that she was not 'disabled' at that time
and therefore that there would have been no breach of duty," the
Court ruled.
Horsfield said that this case underlines the care that should be
taken by employers over the seeking of sensitive information such
as medical details.
"In view of the criticism levelled at the Council's
questionnaire by the judge in this case, employers would do well to
review such forms to ensure that they are worded with clarity and
precision," he said. "If an employer asks for details about a
previous illness, the focus of the questions should be on whether
the applicant is still suffering from the illness; whether any
adjustments are required to be made to the interview process;
and whether the job applicant would require any adjustments to be
made to any physical feature of the employer's premises or any
other provision, criterion or practice applied by the employer to
remove any disadvantage suffered by the job applicant as a result
of their illness," said Horsfield.
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