Thursday 23 August 2012

Medical Evidence and 'Unless' Orders

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary.]

Should a Tribunal strike out or stay a disability discrimination case if a Claimant fails to co-operate with an order to obtain medical evidence?

Yes, says the EAT (HHJ Richardson presiding) in GCHQ v Bacchus, provided an 'unless order' is made first.

The Claimant, a press officer at GCHQ, developed an anxiety condition. Disability was disputed, and the employment tribunal ordered that the Claimant attend an appointment with a psychiatrist so that GCHQ could have its own report. The Claimant failed to do so, but provided a report from his own expert.

GCHQ applied to strike out or stay the disability discrimination claim as the Claimant had unreasonably refused to attend an appointment with its nominated expert. The employment tribunal refused, noting that it could determine disability on the available evidence.

The EAT overturned the tribunal's decision, holding that GCHQ was unable to properly prepare its case without its own expert evidence, which led, in the circumstances, to GCHQ being significantly disadvantaged.

The EAT made an 'unless order', requiring the Claimant to attend the examination on pain of strike out for non-compliance, a simple strike out being draconian at this stage.

The Judgment contains a useful narrative on the approaches to obtaining expert medical evidence at paragraphs 26 -32.

1 comment:

Vertex Law said...

This is a great article. You have touched on some really interesting points