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Commencing the Employment Relationship
You could be forgiven for believing that the only issues arising out of employment law at the current time are those relating to redundancy, lay off and short time working, or issues to do with swine flu. However life goes on and an interesting case has recently been reported where an employer has sued a former employee to recover compensation for loss suffered during the course of the employment relationship, alleging that the employee had misrepresented herself in a pre-employment medical questionnaire as being in good health when in fact she was not. The employer actually lost the case before the High Court on the basis that the questions the employee had been asked were in fact answered correctly, so although the employee had had periods of depression and at the time of her application for employment was still taking antidepressants, nothing in the medical questionnaire required her to disclose those facts and therefore the answers she gave to the questions were in essence correct, and didn’t give rise to misrepresentation.The lessons to be learned from this matter is the importance of properly drafting a pre-employment medical questionnaire in order to establish actual facts in relation to an application for a senior position.Consequently, if proper consideration had been given to the nature of the questions to be raised, the questionnaire should have contained questions requiring a prospective employee to disclose his or her past periods of depression, so for example, a question asking whether the prospective employee was taking any medication, would have obliged her to disclose at the time of her application for employment if she was still taking antidepressants.It also turns out that there was no catch all question calling for disclosure outside the questions actually asked. So to ask for any other detail in a person’s history or circumstances which might affect the employer’s decision to offer employment would indicate a requirement to disclose any past mental health problems.Employers should be very careful before rejecting job applicants on the basis of medical disclosure, so as not to fall foul of the Disability Discrimination Act 1995.Advice should always be taken before making any specific decisions on employment.For further employment law advice please contact the ELAS team on 0161 785 2000.Visit www.employment-law.uk.com for more information.For HR Software to manage your absences, visit www.employersafe.co.uk
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