Medical questions – what employers can and cannot do if a disabled or non-disabled employee lies at interview or in the job application.
As a result of the Equality Act 2010 employers may only ask a question about an applicant's health if that question is necessary for establishing whether a person is able to carry out an activity which is ‘intrinsic’ to the job. This means that, generally, employers should not require applicants to fill out a pre-employment health questionnaires.
Any health related interview questions should be very specific. For example, you would not be able to ask for the medical history of a construction site worker, but you might be able to ask whether the individual had any medical condition which would affect their ability to climb ladders or lift heavy objects.
What Can an Employer do if an Employee Has Not Been Honest About Their Health During The Selection Process?
In fact, there are a number of possible scenarios here, and the answer is slightly different in each one.
- The employer asked an unlawful question, and the employee who lied is not disabled – You could argue that the employee did not breach any contractual or other legal obligation because although they answered incorrectly, the question should never have been asked.
Because there has been no breach of contract in this situation, the employer would normally be required to pay notice if it chose to dismiss.
However, if the employee is not disabled the employer is unlikely to have any liability if it chooses to end the employment, because a new employee would not have the requisite two years’ service to bring an employment tribunal claim for unfair dismissal.
- The employer asked a lawful question, and the employee who lied is not disabled - Here, you can argue that the employee has committed a breach of contract, particularly if it was made clear that the employer was going to rely upon it in offering employment.
Providing the employer is confident that the employee is not disabled, it could potentially dismiss the employee without paying any notice period on the basis that there has been a fundamental breach of contract.
- The employer asked a question about health, and the employee who lied is disabled - If an employer were to dismiss a disabled employee for lying about their health in an interview question or as part of the selection process and a claim is brought, it could be asked by an Employment Tribunal to prove that the reason for the dismissal was the lie, and not the fact that the employee was disabled.
Employers might struggle to prove that they dismissed an employee for lying unless they have a record of dismissing individuals over false information in applications.
Employers would be in a much better position if they ensure that any pre-employment questionnaire forms state that all answers are regarded as warranties, and any failure to answer honestly is likely to be regarded as gross misconduct.
Employment Tribunals are likely to be sympathetic to disabled employees who lie about a medical question, especially if the employer asked an unlawful question.
For more information on unlawful interview questions read our blog for employers: What Can’t I Ask a Candidate During an Interview.
Even if a disabled employee was dishonest in an interview question or pre-employment health questionnaire the Employment Tribunal may still conclude that the main reason for their dismissal was not because they lied; but rather because they had been revealed to be disabled.
If the primary reason for dismissal is disability, then the dismissal will be unfair, even if there was dishonesty.
Disability: The Legal Definition
The problem of course for employers is that it is not at all obvious whether someone is disabled or not.
Even experienced legal and medical practitioners can have difficulty in establishing whether the legal definition of disability has been met in relation to a particular individual.
Read the four-part definition of disability in our Legal Advice Guide to Disability Discrimination.
Employers should proceed with extreme caution before deciding to dismiss employees who are, or who might be, disabled - even if there was a lack of honesty over medical matters before a job offer was made.
Jim Lister is the head of the business team at Slater and Gordon Lawyers in Manchester.
The employment solicitors for business at Slater and Gordon Lawyers can provide employers and business owners with immediate legal advice, call us anytime 24/7 on freephone 0800 916 9052 or contact us online and we’ll be happy to help.