Disabling strike out

In disability discrimination claims, tribunals may require expert medical evidence to decide if a worker is disabled, but what happens if the claimant refuses to be examined by the employer’s expert? The Employment Appeal Tribunal (EAT) said in GCHQ v Bacchus that tribunals should order the claimant to attend an appointment and put them on notice that if they do not, the claim will be struck out.

Basic facts

Mr Bacchus transferred to the GCHQ press office in Cheltenham in January 2010. He went off on sick leave in July that year with acute anxiety and resigned in September 2011.

He lodged a number of tribunal claims, including disability discrimination. Mr Bacchus was ordered at a case management discussion on 3 November 2011 to disclose a report from his psychiatrist to GCHQ by 17 November but failed to do so.

At a further case management hearing in December, GCHQ said it intended to instruct its own expert and put forward a name, but Mr Bacchus refused to see him. A judge ordered GCHQ to suggest three names for Mr Bacchus to choose from and produce the report by 18 March 2012.

Mr Bacchus did not agree to any of the experts. A further case management discussion was held on 22 March at which the judge ordered Mr Bacchus to attend a medical appointment with one of the experts on 30 March but he did not show up.

He did, however, produce his own expert report dated 2 April. GCHQ was not consulted about the letter of instruction or the identity of the expert. At the full hearing on 23 April GCHQ applied to strike out or at least postpone the disability discrimination proceedings because Mr Bacchus had refused to be examined by any of its chosen experts.

Tribunal decision

The tribunal said that although Mr Bacchus had not given a good reason for objecting to the experts chosen by GCHQ, the question it had to decide, given the circumstances, was whether it was possible to have a fair trial without any expert evidence.

It decided that as it had his occupational health and GP records, his medical certificates and his medical records, it could decide whether Mr Bacchus was disabled or not. It therefore refused to strike out his claim on the basis that it could hear it without any expert evidence on either side.

GCHQ appealed, arguing that the tribunal had failed to properly answer the question. It had determined whether or not Mr Bacchus was disabled instead of whether GCHQ could still prepare its defence without a medical expert report.

EAT decision

The EAT considered the test laid down in Lane v Willis - that the party applying for the order must show that they cannot reasonably prepare their defence without a medical examination - and overturned the tribunal decision.

The tribunal had ordered that expert evidence was needed and a number of case management decisions had been made to that effect. Although it might have been sensible to have had a joint expert as set out in the guidance in DeKeyser v Wilson that option was not considered. Mr Bacchus had obtained his expert report but GCHQ had been prevented from doing so because of his refusal to agree to meet any of their experts.

The EAT said that the case was not a simple issue as to whether Mr Bacchus was disabled. There were “a range of issues” for which expert medical evidence was important, including deciding the date from which he was disabled, the extent to which reasonable adjustments would be effective and remedy.

In light of that the EAT considered that GCHQ was prejudiced by the tribunal’s decision not to allow medical evidence. It therefore ordered Mr Bacchus to present himself for examination by a certain date, warning him that his case would be struck out for non-compliance if he did not do so.