GCHQ v Bacchus UKEAT/0373/12/LA

Subjects: Expert evidence – Medical Evidence – Co-operation with Medical Expert – Unless orders – Strike Out

C brought proceedings for disability discrimination. C claimed that his disability was anxiety and depression. He refused to attend a consultation with any of the three experts proposed by R while he obtained his own psychiatric report. The ET refused to strike out his claim and R appealed.

Facts

C worked for R as a senior press officer. He began a period of sick leave in September 2011. He presented three claims to the ET including a claim for disability discrimination in all its forms. C alleged that he had become ill with anxiety and that this was a disability. He alleged amongst other things that R should have made reasonable adjustments by allowing him to work in London and changing his line manager. At a CMD the ET ordered that C co-operate with R's attempts to procure a medical report. C refused to visit one of the 3 experts proposed by R. The ET then made an order that C attend the appointment with a Dr Wise. C did not attend that appointment but did obtain and serve his own medical evidence. At the beginning of the hearing C had obtained a report but R had not. R applied to strike out C's claim or stay it. The ET refused this application and determined that both parties would proceed without medical evidence. There was then insufficient time to deal with the case so it was relisted.

Held

HHJ Richardson in the EAT referred to the Guidance given by the Appeal Tribunal as to the procedure to be adopted for obtaining expert medical evidence in cases under the Disability Discrimination Act 1995: see De Keyser v Wilson [2001] IRLR 324 at 330. De Keyser explains the two methods by which expert evidence may be obtained. Firstly, there may be a joint expert report where the parties agree the letter of instruction to the expert and the identity of the expert; or, in default of agreement, the Tribunal fixes the contents of the letter of instruction and the identity of the expert having heard submissions from the parties. This is the preferred course.

The second approach is that each side may instruct their own expert. Generally speaking each side is entitled to choose the expert it wishes to instruct, so long of course as the expert is in an appropriate discipline. In this case the Tribunal permitted Mr Bacchus to choose from one of three names put forward by GCHQ. This was a more favourable order than Mr Bacchus was entitled to expect, given that the order was not for a joint expert. He was entitled to, and did, choose his own expert. GCHQ was entitled to do the same. Mr Bacchus was not entitled to veto GCHQ's choice of expert.

The question remained - what to do where C refuses to co-operate? The EAT referred to the approach adopted in the civil courts and set out in the judgment of Sachs LJ in Lane v Willis [1972] 1 WLR 333. The Court should not require a claimant to submit to a medical examination but may instead grant a permanent stay of the claim if he does not co-operate. The EAT also referred to Abegaze v Shrewsbury College of Arts and Technology [2010] IRLR 238 in which Elias J proposed an unless order requiring the claimant to present himself for examination by a certain date, with the consequence that his case would be struck out for non-compliance if he refused or was otherwise unco-operative. The party applying for the strike out or unless order must show that he is unable properly to prepare his defence without the examination; and it must be reasonable to make the order in the interests of justice.

The ET had erred since the question it considered was whether it could continue to. The principle issue was whether R could show that it was unable to properly prepare its defence without medical evidence. The EAT held that it could not and

Comment

When considering this question the EAT provided a helpful overview of the four areas for which medical evidence was required for this case. The list is a helpful reminder. Medical evidence was required:

(1) to help determine the question of whether C was disabled; (2) to help determine whether the PCP placed C at a substantial disadvantage; (3) to help determine whether the reasonable adjustments would be effective; (4) in respect of remedy. This is a useful breakdown.

Many respondent clients focus solely on (1) when they procure their reports.

The EAT decided that the ET had not considered this issue properly but had instead considered whether it was able to decide the case on the existing medical evidence. The EAT did not consider that an order striking out C's case was appropriate, but instead substituted an unless order along the lines of that set out in Abegaze.

A very helpful case dealing with the unco-operative claimant, which was not referred to in this case, is Hanlon v Kirklees Metropolitan Council & Ors [2004] All ER D 154, EAT.

The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2012/0373_12_0608.html