Can an employee be dismissed on the basis that he or she did not disclose a medical condition on the application form?

A dismissal on the grounds of an employee's non-disclosure of a medical condition will create two risk areas for the employer: a claim for unfair dismissal, which will be possible only if the employee has worked for the employer for at least two years, and a claim for disability discrimination, if the medical condition amounts to a disability under the Equality Act 2010.

Termination of employment in these circumstances is likely to be a fair dismissal provided that the employer follows a fair procedure and notified the employee at the time of recruitment that a failure to disclose medical information (or any other relevant information), as requested, constitutes grounds for dismissal.

If the reason for the dismissal is something that arises from the medical condition, the dismissal will be unlawful discrimination, unless the employer can justify it, for example by showing that the employee's medical condition makes him or her unable to perform the job for which he or she was employed. However, before dismissing the employee in these circumstances, the employer must consider its duty to make reasonable adjustments, and go ahead with the dismissal only if there are no reasonable adjustments that would facilitate continuing employment.

It may be open to the employer to argue that the reason for dismissal is the employee's failure to disclose the information when requested to do so for a legitimate reason, not the employee's disability, or something arising from his or her disability, and the dismissal is therefore not discriminatory.

Section 60 of the Equality Act 2010 restricts the circumstances in which employers can ask prospective employees questions about their health before making an offer, including a conditional offer, of employment. A candidate can use the fact that an employer has made pre-employment health enquiries as evidence to support a claim for disability discrimination. However, s.60 applies only to disability discrimination claims relating to a failure to offer work, and would not be relevant in a claim brought by an employee who has been dismissed for failing to disclose a medical condition.