Saturday, 31 January 2009

Should Mental Illnesses Be Disclosed To Employers?

It was widely reported in various British newspapers two days ago that the Cheltenham Borough Council is to sue its former Managing Director Christine Laird for having “misrepresented and misstated” her fitness for employment on an application form. Cheltenham Borough Council’s suit for a million pounds accuses Christine Laird of "fraudulent or negligent misrepresentation" in concealing her depressive illness in her job application and the fact she had been taking anti-depressants for several years. Part of the job application involved filling up a medical questionnaire and (I’m guessing here) most probably Christine failed to tick the box for mental illness.

Christine Laird started to work for the Cheltenham borough council in February 2002. She held her job until 2005. Four months after Christine started her new job, the Liberal Democrats captured power. Andrew McKinlay, a Liberal Democrat became the Head of the Council. Apparently Christine and Andrew never got along. Christine’s tenure was marked by a series of bitter disputes with the Council and Andrew McKinlay, with allegations and counter-allegations of inappropriate, unhelpful, obstructive and bullying conduct. While employed by the Council, Christine Laird filed 25 official complaints with the Standards Board for England , of which only one was upheld. From June 2004 until the time she left the job in 2005, Christine was absent on full pay on account of ‘stress’.

Now the Council is seeking over a million pounds in damages from Christine for not having disclosed her medical details. The damages claimed includes a projected cost of £450,000 to the Council on account of Laird's ill-health pension entitlement, £96,000 towards legal costs on account of previous court proceedings, and £175,000 for cover while she was off sick.

The issue which interests me greatly is this: Should job applicants be forced to disclose details of their mental illnesses on job application forms? Let’s assume that Christine Laird is being sued solely because the Council woke up one morning (after she had quit) and found out that she was suffering from depression while working for the Council and even earlier. Let’s suppose that the animosity between Christine and Andrew McKinlay has not influenced the Council’s decision to sue her and claim a million pounds in damages.

It is accepted that lying on one’s CV is a ground for termination if discovered. However, do applicants also have a duty to disclose every detail that an employer may want to know? If one were to say that job applicants who are facing a broken marriage should disclose it on their resumes, one would be met with howls of laughter, notwithstanding the fact that a broken marriage can be as much disruptive to doing one’s job as depression is.

I do believe there is some merit in the argument that applicants should disclose all details that may have an impact on their job performance. The flip side on this is that, anyone who discloses an existing mental ailment is very unlikely to be hired, irrespective of whether the illness is serious or not.

Depression apparently affects approximately 19 million Americans, or 9.5% of the US population in any given one-year period. Depression is called the ‘common cold’ of mental illness since so many people suffer from it. Various famous personalities such as Abraham Lincoln have suffered from depression, though to be honest, most of the famous ones who suffered from depression have been writers and artists, callings where a mental imbalance may not cause as much harm as it would to a bureaucrat or a doctor or an engineer. Obsessive-compulsive disorder or OCD is another mental illness that is very common. Apparently it is the fourth most common mental disorder and 2% of the world’s population suffers from it.

I would argue that until society starts to accept mental illness as just another ailment, the mentally ill should be allowed to conceal their illness provided they have been advised by a qualified doctor that they are capable for holding a regular job. If not, so many mentally ill people with minor ailments will be at risk of not getting suitable employment if they are honest in their applications. If they are dishonest and things don’t work out for them at work (for reasons which may not be linked to their illness) and their employer gets to know of the employee’s illness, the employer will be able to claim damages from them.

If an employee is unable to do his job, s/he can be and should be fired. The reason why s/he can't do his job may be because s/he has a mental illness or because his/her marriage is breaking down or because s/he is incompetent. I would never argue that a mentally ill employee should be kept in employment. However, an employer should not be able to claim damages from an employee or ex-employee on the ground that the employee or ex-employee did not disclose details of his/her mental illness when applying for the job. However, if an employer or ex-employer can prove that the employee had been advised by a qualified doctor to not take up that job, it should be possible for the employer to claim damages. I don't think the law is settled in this area. I am only suggesting what the law ought to be.

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