Strong as an ox?

A contract can be terminated if an employee is found to have lied on the application form but, where medical issues are concerned, it pays to be certain there is no room for ambiguity, says Richard Bird.

We all know there are there are child protection checks that must be carried out before appointing staff. However, other checks are also made, such as checks on qualifications, experience, and medical health. What happens if these checks are answered incorrectly? Are there things that an employer can do about it?

A case last summer, not with a school but involving the issue of medical checks, casts a particularly lurid light on the issue. It was between Cheltenham Borough Council and a Mrs Laird, who had been their managing director. The judge listened to what he described as "a myriad" of claims from both sides but in the end it came down to two questions: had Mrs Laird deceived the council on her medical form and, if so, was the council entitled to consider her contract of no effect and claim damages?

Mrs Laird had been appointed by one political group to put through certain controversial changes; another came into power which did not agree with those changes and things became difficult. The judge was not impressed with either party's conduct.

In the end, the council began disciplinary action against Mrs Laird. She went off sick with depression. When it became clear that her contract could not be fulfilled because she could neither work nor attend a disciplinary hearing, she was retired on grounds of ill health with an agreed package.

At this point, the council discovered that she had had three previous episodes of depression and had been taking medication when she applied for their post. The council claimed that the post had been obtained by deception and claimed £1 million in damages.

Each depressive episode that Mrs Laird had suffered from was separate. The medical advice presented to the court was that she had a "vulnerability to stress" and that "stress led to depression".

It was doubtful whether she was, in fact, robust enough for a job that was certain to have involved high levels of stress even if the change in political leadership had not occurred. So did her answers to the questionnaire amount to deception? If so, would the council be entitled to damages? The key questions and answers were:

• Do you generally enjoy good health? Yes

• Do you have any mental or physical impairment? No

• Have you any ongoing medical condition? No

One's immediate reaction is that these answers are false. However, the judge pointed out that it was reasonable for Mrs Laird to believe that apart from the separate episodes, she did enjoy good health. Similarly, she had no reason to believe that she had an impairment and it was reasonable for her to believe she did not have an ongoing condition. Each answer was correct.

Each question was to be construed objectively: how would a reasonable person understand it? If there were any ambiguities, an answer that fitted any of the meanings of the question would be acceptable. It was the council's form. They had to get it right. It wasn't Mrs Laird's job to do that for them.

There was only a right to terminate the contract if she had wilfully withheld information - that is, that she did it deliberately with intent to deceive or recklessly (without concern for the consequences).

Similarly, damages could only be recovered if it could be proved that she had the ability to know, and the knowledge and belief, that she was being deceitful. She had a duty to take care what she said but that was as far as it went.

Mrs Laird had not been told that there was any underlying ongoing condition and given that this only manifested itself in stressful situations, she could not be considered to be deceiving when she answered the questions the way she did.

There are perhaps two lessons to be drawn from this case. One is that it would be a good idea to consider whether the medical questions on your application form are specific enough, particularly in regard to stress.

And the second? As the Chinese say, "If a piece of paper blows into a law court, it may take a yoke of oxen to drag it out." And refreshers for oxen do not come cheap.