News
Case law: Cheltenham Borough Council's damages claim is dismissed
22 Jun 2009
Cheltenham Borough Council has lost its High Court claim for £1million in damages against Christine Laird, its former chief executive.
The claim
The council alleged that Christine Laird had 'fraudulently or negligently' withheld details of her history of mental illness, which included three bouts of anxiety and depression between 1997 and 2002, when she completed an occupational health medical questionnaire as part of her application for the post. The council’s claim centred on what it considered to be her deceitful replies to two questions in the medical questionnaire. The first question asked 'Do you enjoy good health?' She wrote 'Yes'. The second question asked 'Do you have any ongoing medical conditions which would affect your employment?' She wrote 'No'.
Laird disputed the council’s assertion that the appointment was conditional on her medical assessment. She claimed that the job offer was unconditional and that the offer had been made and accepted by her at an interview on 4 January 2002. Mrs Laird also stated that she was not suffering from depression at the time when she completed the medical questionnaire and was only taking anti-depressants as part of a 'weaning off' process.
The background
She had taken up the post with Cheltenham Borough Council in February 2002 at a time when it was controlled by the Conservatives. She was primarily involved in implementing a restructure programme at the Council. In May 2002 the Liberal Democrats took control of the council and Laird claimed that 'an atmosphere of mutual distrust' gradually developed between her and Andrew McKinlay, the Liberal Democrat leader of the council.
She claimed that for the next three years she was subjected to a politically motivated 'dirty tricks' campaign of bullying, harassment and intimidation by the council’s Liberal Democrat members who saw her as sympathetic to the Conservatives. Her response was to take various steps against the council which included raising a grievance and commencing a county court claim for harassment against Andrew McKinlay. She also pursued an application for a restraining order against him but this was subsequently withdrawn in April 2004.
In June 2004 Laird was suspended by the council on full pay pending an independent investigation which subsequently dismissed all charges against her. She left the council in August 2005 on the basis of an ill-health retirement after having taken sick leave on full pay from June 2004 until her departure. The council claimed it had suffered substantial financial loss as a result of her retirement, in particular because of her substantial ill-health pension benefits.
The decision
Mr Justice Hamblen dismissed the council’s claim for damages and also dismissed a counterclaim by Laird that the council was in breach of its duty towards her for failing to protect her against harassment.
The judge found that the representations which she had made were neither false nor misleading 'given the terms of the questions' and that her mental health condition in 2002 did not amount to a disability for the purposes of the Disability Discrimination Act.
The council was ordered to pay 75% of Laird’s legal costs and she was ordered to pay £190,000. The judge made it clear that he would not be awarding full costs to her because she had 'thrown the kitchen sink' at the council. However, the council faces a total costs bill of approximately £750,000 and this figure does not take account of the previous abortive proceedings commenced against her previous employers alleging that a misleading reference had been given.
Comment
The judge commented that this is a 'novel' case because it involves the employer suing a former employee for damages for making fraudulent or negligent misrepresentations in a job application. This is to draw a contrast with the common situation of misrepresentation by an employee where the employer opts to terminate their employment rather than seek damages. Clearly, the facts of this case could just as easily apply to answers given by a prospective employee in their CV, job application form or reference.
From an employer perspective this case demonstrates the need to ensure that if pre-employment medical questionnaires are to be used as part of the recruitment process they need to be properly drafted. Clearly employers want be able to establish an individual’s health status so that they can establish capability to do the job and so that they can meet their obligation to make reasonable adjustments to accommodate any declared disability.
For job applicants, workers and employees there remains the fear of discrimination if they disclose mental health issues. Certainly a pre-employment questionnaire is open to being abused as a means of weeding out applicants who have revealed a mental health condition. This situation will persist in the workplace until the stigma of mental health illness is overcome.
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