Thu, 20 Sep 2012
By Hermione Williams
Hermione Williams considers the implications of the EAT’s recent decision in Government Communications Headquarters v Bacchus UKEAT/0373/12/LA.
Can a Claimant refuse to cooperate over medical evidence? In the recent case of Bacchus the EAT has answered this question in the negative. HHJ Davidson, who presided over the EAT, handed down a judgment which should reassure employment lawyers that Tribunals are expected to be robust in enforcing orders made during the course of trial preparation and should not overlook a party’s non-cooperation or non-compliance.
This article has three sections: the first sets out a summary of the salient facts and issues; the second summarises the decision made; and in the final section I give a short analysis of what parties can learn from the case.
Facts and Issues
The Claimant was employed in government service from September 2002. In January 2010 he transferred to work for GCHQ as a senior press officer, his contractual place of work being Cheltenham. From July 2010 until his resignation in September 2011, he was signed off work on sick leave. The Claimant commenced proceedings in the employment Tribunal for disability discrimination (in all its various forms), race discrimination, constructive unfair dismissal and allegations in connection with a public interest disclosure. All the claims were vigorously opposed by the Respondent, including the question of whether the Claimant was disabled within the meaning of section 1 of the Disability Discrimination Act 1995 at the relevant time. It was the Claimant’s case that he became ill in July 2010 with acute anxiety – an impairment which he alleged was always likely to last at least 12 months – and that the Respondent had failed to make reasonable adjustments and had harassed him by reason of this disability.
Three case management discussions took place in this case and at the first the question of whether expert medical evidence was required and should be admitted was considered by the Tribunal and the parties. It was plain to all that it was required, the Respondent making it clear that it wished to adduce medical evidence on the question of disability and reasonable adjustments.
The Claimant was ordered to disclose the report that he was obtaining from his treating psychiatrist by a set date and then it fell to the Respondent to inform both the Claimant and the Tribunal whether it intended to obtain its own report. However, by the time of the next CMD the Claimant had not served any report. The Respondent confirmed that it wished to obtain its own report and the Claimant was ordered to choose one of three psychiatric experts proposed by the Respondent and attend an assessment. The Claimant objected to all three experts and refused to attend. This meant that the Respondent was not in position to instruct an expert. At a further CMD the Claimant was ordered (again) to attend an appointment with one of the experts. However, he refused to do so and instead obtained his own medical evidence and sought to adduce it at the final hearing.
At the commencement of the trial Counsel for the Respondent made applications for a stay and/or a strike-out of the disability discrimination claim. The Tribunal rejected such applications and concluded that it was able to determine whether the Claimant was a disabled person from the GP records and occupational health reports. As such, it refused to allow the Claimant to adduce his report. The question the Tribunal asked itself was whether a fair trial was still possible without expert evidence. It concluded that it was. Nevertheless, the trial was then re-listed on account of the time taken in dealing with these applications.
The Respondent appealed to the EAT on the grounds that the Tribunal had failed to consider whether the Respondent was unable to prepare its defence properly without a psychiatric examination and report. It was argued that the Tribunal had asked itself the wrong questions and erred in law.
The EAT allowed the appeal and made an order that unless the Claimant presented himself for examination by the Respondent’s expert on a stated date, his claim for disability discrimination would be struck out for non-compliance.
The reasoning of the EAT was as follows:
1) It was plain that both parties considered that expert medical evidence was required. Guidance had been given as to the procedure to be adopted for obtaining expert medical evidence in De Keyser Ltd v Wilson  IRLR 324. The preferred course was for a joint expert report. Alternatively, either side could instruct their own expert.
2) The Tribunal permitted the Claimant to choose from one of three names put forward by the Respondent. That was a more favourable order than the Claimant was entitled to expect. Quite exceptional reasons would have been required before the Claimant could properly veto the Respondent’s choice of expert, and no such reasons existed.
3) The question was therefore what should be done in the light of the Claimant's refusal to co-operate with the Respondent's choice of expert? The test laid down by Lane v Willis  1 WLR 326 was apposite: the party applying for the order had to show that he was unable to prepare his defence properly without the medical examination. That was the critical question and the Tribunal’s failure to consider this and instead ask itself whether it could decide the issue of disability on the existing evidence, was an error in law.
4) Faced with such an application a Tribunal can stay the claim or impose an unless order, requiring a Claimant to present himself for examination by a certain date with the consequence that his case would be struck out if he refused. As stated above, the EAT adopted the latter course in the instant case.
There are a number of reasons why the case is useful but to my mind the following are worthy of particular mention:
First, it reveals EAT’s clear approval of the case of Lane v Willis and the test set out therein. Accordingly, a Respondent faced with a non-cooperative Claimant and therefore obliged to make an application for a stay or strike out unless he/she submits to a medical examination by a specialist instructed by them, has to be able to show that it is unable to prepare its defence properly without that examination.
Second, in making such a submission, a Respondent would be wise to consider the issues to which expert medical evidence may be relevant. For example, determining at what date a Claimant became a disabled person involves an assessment of the point at which it became “likely” that he/she had an impairment which would last at least 12 months – a question which is not straightforward. The reason that this is particularly important is because it may determine when the duty to make reasonable adjustments arises.
Third, a Respondent should explain why medical evidence is relevant to the question of whether a particular PCP placed the Claimant at a significant disadvantage compared with persons who were not disabled, and whether and to what extent the reasonable adjustments the Claimant wanted would have prevented that disadvantage. The EAT also states that medical expert evidence is relevant to what remedy is suitable as this involves questions of causation, diagnosis and prognosis. I highlight this for the reader because the EAT is careful to set out this factor in its reasoning despite the fact that neither side in Bacchus had raised the question of remedy during the case.
Fourth, the EAT paid particular attention to De Keyser v Wilson – a case which sets out the procedure to be adopted for obtaining expert medical evidence in cases under disability discrimination legislation. The first question posted in De Keyser, namely, whether expert evidence was required and should be admitted – was considered by the parties in Bacchus at the CMDs and answered in the affirmative. Orders were subsequently made pursuant to rule 10(t) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. As such, the EAT was critical of the Tribunal in its move to revisit the question of whether expert evidence should be allowed. In my view, parties would be advised to follow the principles set out in De Keyser and proceed along the joint expert route if possible (the EAT’s preferred course) and simply seek to ensure that the letter of instruction is as comprehensive as possible. If agreeing a joint expert is impossible and each side instructs their own, a Respondent faced with a difficult Claimant can take comfort from Bacchus. It is apparent that the Tribunal hearing the trial is expected by the EAT to adopt a robust approach towards any Claimant that has refused to cooperate.
Finally, Bacchus is a good example of the EAT paying particular attention to the prejudice suffered by the Respondent as a result of the course that the Tribunal took. Having posed the question of whether it could decide the issue of disability on the basis of the existing evidence, the Tribunal ignored the prejudiced caused to the Respondent by it being prevented from seeking other expert medical evidence on the issues. Such an approach was criticized.
Ironically, although the Tribunal was apparently mindful of whether a fair trial was still possible, it failed to explain why the Respondent was not significantly disadvantaged if it could not instruct an expert.