Pre-employment health questionnaires

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.

1. 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.

2. 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.

3. 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.

Employee tribunals

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.

Employment tribunals are likely to be sympathetic to disabled employees who lie about a medical question, especially if the employer asked an unlawful question.

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.

For more information, call us on freephone 0330 107 5087 or contact us online.

All the above information was correct at the time of publication.