Evidence and DDA Claims

This case concerns whether an Employment Tribunal has jurisdiction to strike out a Disability Discrimination Claim on the basis that a Claimant has failed to attend an appointment with the employers nominated expert.  The EAT decided in GCHQ v Bacchus it can, providing the party seeking the order is sufficiently disadvantaged by the non compliance and an unless order is made beforehand.

The facts were that the claimant refused to attend an appointment with the employers nominated expert and sought only to rely upon their own expert. The employer applied to have the claim struck out which was refused by the Employment Judge.

HHJ Richardson (Presiding) held that the Employment Judge was wrong and stated at para 21 of the judgement:-

"The Employment Tribunal Rules to which we have referred endow Employment Judges and Tribunals with ample power to case manage the obtaining of expert evidence if such evidence is required for the just disposal of the proceedings".

 

He went on further to hold at para 45 of the judgement:

 

The question which the Tribunal ought to have considered is whether in the circumstances GCHQ was unable properly to prepare its case without instructing an expert.  This was the critical question, as Lane v Willis shows. Although the Tribunal identified this question in its reasons, it did not answer it; and we think if it had answered the question, it would have been bound to conclude that GCHQ was significantly disadvantaged if it could not instruct an expert.
 

The EAT went on to reiterate some further guidance from the authorities in terms of medical evidence and made an Unless Order forcing the claimant to comply with the original obligation to attend the appointment with the medical expert.

In our view this would be a case which is quite fact sensitive; The Employment Tribunal would have first needed to establish that expert medical evidence was needed for a fair disposal of proceedings and the the Employer (Respondent) would need to be sufficiently disadvantaged by the Claimants non compliance/non cooperation.

In either breath, the message from this case is that Employment Judges have a duty to establish fairness and a level playing field in accordance with the Overriding Objective and have a wide discretion in terms of Case Management Orders.

It also establishes that where medical evidence is needed in disputed disability claims, the parties will need to comply with Case Management Orders in the spirit of fairness and transparency. To refuse to do so could be fatal to any case of Disability Discrimination.