Page last updated at 12:12 GMT, Monday, 15 June 2009 13:12 UK

What health details must you tell your boss?

Christine Laird
Many people fear revealing a mental health condition in the work place

After a long and costly legal battle, a local council has lost an attempt to sue one of its managers for not revealing her history of mental illness before taking the job.

So what do employers have a right to know about the health of their potential employees?

In this case Cheltenham Borough Council tried to sue Christine Laird for £1m, after accusing her of fraudulently withholding details of her history of depression when she applied to become its managing director.

Mrs Laird, 52, took the job in 2002, but left in 2005 on an ill-health pension after taking sick leave on full pay. The council said her actions caused it to lose more than £1m.

Mr Justice Hamblen dismissed the High Court action, but the case raises important questions about what employers have a right to know about the health of their employees.

'Entitled to ask'

Rakesh Patel, head of the London employment rights team at Thompsons Solicitors, told the BBC most employers will ask about a potential employee's past sickness.

He said an employer has a right to know about any condition that will seriously hinder the employee's ability to do the job they are applying for.

"They are entitled to ask, because they want to see if you are capable of doing the job," he said.

This includes highly sensitive information about grave conditions such as HIV or cancer, if the condition is at a stage that will prevent the person from doing their job properly.

What this will mean, I suspect, is that employers will tighten their procedures to ask more detailed questions
Rakesh Patel

Mr Patel said employers are also entitled to ask your previous employer if, as is usually the case, you have listed them as one of your referees.

"Most will ask about your performance and about how many days off sick you have had over the past two or three years."

The previous employer is required to give information that is factually accurate.

But what if simply counting the number of days off sick does not fully reveal the full extent of an underlying health condition?

'Important verdict'

Mr Patel said an employer may still be able to argue the potential employee should have volunteered the information in order to honour the "mutual trust and confidence" that is implied by taking a job.

"Ordinarily, if an employer finds a person has given false information on their application about their health they would be sacked," he said.

But Mr Patel added he did not think Mrs Laird's case set a contradictory precedent because he believes the issue at hand was that the questions asked of her were simply not specific enough.

"What this will mean, I suspect, is that employers will tighten their procedures to ask more detailed questions about the employee's ability to carry out the specific job they have applied for."

We've got to create a more level playing field where people feel more comfortable revealing their mental health conditions
Paul Farmer, Mind

But Paul Farmer, chief executive of mental health charity Mind, welcomed the ruling.

He told the BBC: "I think this is a pretty important verdict. It makes very clear that an employer cannot sue somebody because they have simply answered the questions on the application form."

But Mr Farmer said the case was also about the issue of discrimination on the grounds of mental illness.

"Although it was not specifically about discrimination, the reality is many people choose not to reveal their mental health problems because they feel they simply won't be appointed."

Mr Farmer said a recent survey found between a quarter and a third of people had direct experience of being turned down for jobs after revealing a mental health condition.

He said: "What we at Mind would like to see is post-appointment questionnaires - questionnaires that provide support for people once they've been appointed on an equal footing.

"We've got to create a more level playing field where people feel more comfortable revealing their mental health conditions."



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SEE ALSO
Council loses 1m sickness case
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26 Mar 09 |  Gloucestershire
Council job 'a poisoned chalice'
25 Mar 09 |  Gloucestershire

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