Negligent misrepresentation
by Sarah
We are often asked the question as to what can an employer do if it is later discovered that the employee has not disclosed medical history which may affect their ability to do the role. The answer could be it is Gross Misconduct and a breach of trust and confidence. If this is discovered in the first year of employment it is easier but you need to be careful if the disability discrimination act is involved.
I came across the case of Cheltenham Borough Council v Laird [2009] today which is a High Court case. In this case the High Court rejected the employer’s claims that the employee’s failure to mention her history of stress related depression amounted to a fraudulent or negligent misrepresentations which induced the Council to enter into her employment contract. The job offer was subject to medical clearance and the employee completed a medical questionnaire in which she failed to mention any stress or depression nor did she reveal she was taking anti-depressants.
The Court held that the statements she made were not false and therefore were not misrepresentations. The answers she gave were not incorrect so the answers were not false or misleading. The Court felt that the questionnaire was poorly drafted and the outcome may have been different if the medical questionnaire had been better drafted so it was less ambigious. However, the Court did say that even if the answers had been false they would not have been negligent or fraudulent if she had believed them.
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Dear Sir/Madam,
I sincerely hope that you can help me with my present situation. I have been following the recent case of Mrs Christine Laird with great interest. In January this year, I was dismissed for gross misconduct by my local Council after almost five years service.
I was dismissed for the following..” failure to disclose a medical condition on a Council pre-employment form, in order to secure employment with the Council “.
I must point out that my condition was not a mental illness, but rather a physical one.
1) I commenced employment on March 29th 2004, there was no mention at my interview, or when I was offered the post that it was subject to a medical form. I was issued with the pre-employment medical form, on November 16th 2004, almost 8 (eight months) later. I hadn’t taken time off work during that period, and I was employed full-time. Is it illegal under UK employment law, to issue, and instruct an employee to complete and return a pre-employment medical form, under the above circumstances ?
2) At the very least, shouldn’t the pre-employment medical form be deemed invalid under those circumstances, especially when the form has been used against me some four years later to dismiss me ?
3) The medical form consisted of one question, ” have you EVER suffered from any of the following ? “….it then listed several medical conditions, in a tick-box/ yes-no format. I wasn’t aware of any medical condition that had, unknown to me been recorded by a previous GP in my medical records in December 2003. I had been to see my GP at that time for a small ache in my neck, but thought no more of it. I was fit and healthy at the time of completing the medical form.
4) I argued with my employer before my dismissal, that the medical form was ludicrous, as the question on it was wide open to mis-interpretation. For example…SPRAINS…if I had sprained my wrist when I was 10 years of age, then the question on the medical form implies that I should disclose such an injury some FORTY YEARS later ? My employer, answered, ” technically yes”.
5) I have also discovered that some other employees didn’t even receive this medical form, and are still employed by the Council after 7-10 years. Is that not a clear case of discrimination against me under UK employment law ?
I do hope that you are in a position to answer my questions, or at least some of them. I would be eternally grateful for any advice on the appalling situation that my former employer has placed me in.
Thanking you,
James Brown,
Glasgow.
James Brown said at July 30th, 2009 at 8:33 pm