The Disability Discrimination Act 1995 has increased the access of many people to the labour market. Employment opportunities have certainly multiplied for one group: medical expert witnesses. Before the DDA came into force, medical experts rarely appeared before Employment Tribunals. Now, they have become a regular feature. This article will identify some ways in which representatives can increase the effectiveness of medical evidence.
It will often be of most use if the medical evidence is produced before the need for proceedings has arisen - for example during a sickness absence procedure, at an appeal or grievance hearing. Although a specialist medico-legal report is unlikely to be needed at this stage, a GP or treating consultant will often be willing and able to write a letter to an employer suggesting a possible date for a return to work and/or possible adjustments which could be made to enable a return. Alternatively, a letter could point out that a disabled person has difficulty with one aspect of work and suggest a way of removing or reducing the disadvantage so caused. In some cases, evidence of this nature will allow matters to be resolved satisfactorily at the outset.
Even if the evidence does not persuade the employer to act in the desired fashion, it may still serve a useful role in preparing the ground for proceedings under the DDA.
The duty to make reasonable adjustments does not arise unless the employer knows or ought to know that a particular arrangement puts a disabled person at a substantial disadvantage (section 6(6) of the DDA). It is important that any difficulty is drawn to the employer's attention. Whilst a letter from a doctor is not the only way of doing so, it is a very effective way. Secondly, if an employer fails to take into account medical evidence provided by or on behalf of the employee, it is unlikely to show that any less favourable treatment is justified for the purposes of section 5. Even where the employer has already obtained its own un-favourable medical advice, it will be at risk if it fails to consider the contrary viewpoint of another clinician or even ask its own medical adviser to consider that alternative approach, see Jones v Post Office [2001] IRLR 384.
The fact that a particular adjustment is not suggested by an employee or the employee's doctor at the material time does not absolve an employer of responsibility for considering whether in fact any adjustments can be made, see Cosgrove v Caesar & Howie [2001] IRLR 653. Nonetheless, in practice it will often be easier for an employer to excuse a failure to make an adjustment in these circumstances. If the issue of adjustments is raised, representatives should consider whether all potential adjustments have been referred to in any medical evidence. If not, and if time allows, it will often be preferable for a particular adjustment to be raised with the GP or consultant to deal with it from the outset or in a follow up letter. If this is not practical, the possible adjustments could be raised by or on behalf of the employee in writing.
A different approach needs to be taken in obtaining medical evidence for use at a hearing in the Tribunal. Doctors used to producing reports for personal injury claims may not appreciate what evidence will be useful in a DDA case. This explains why much of the medical evidence placed before tribunals deals with matters that are not in dispute or which are not questions of medical opinion and also fails to deal with the real issues in the case. On occasions, evidence from expert witnesses has contained as much legal advice as medical opinion. For example, experts have stated that a particular activity was not a normal day to day activity or that they did (or did not) consider an applicant to be a disabled person within the meaning of section 1 of the DDA because there was (or was not) a substantial adverse impact on such activities. In both Vicary v British Telecommunications [1999] IRLR 680 and again in Abadeh v British Telecommunications [2001] IRLR 23, the EAT has pointed out that there are limits to the matters upon which a medical adviser can give useful or relevant evidence.
The EAT emphasised that it is for the Tribunal to decide whether impairments had a 'substantial' adverse impact on normal day to day activities within the meaning of the Act. It is not for expert witnesses to express opinions on these matters. Instead, said the EAT, their evidence should be directed to matters such as the prognosis, the effect of medication and, if appropriate, their own observations of the applicant carrying out any relevant tasks or functions and the ease or otherwise with which they were carried out. In addition to the matters referred to by the EAT, the approach referred to above about disadvantages and potential adjustments could also be used in producing evidence for use at any hearing.
As a result, it is important to ensure that the medical experts are asked to deal with the correct issues in their reports or letters to the court, especially if they are not going to be called to give oral evidence. Some matters require particular attention.
Firstly, the question of diagnosis should be addressed. This is essential in cases of mental ill health, where applicants need to prove that their conditions are 'clinically well recognised illness', Schedule 1 paragraph 1(1). This can usually be done by the treating doctor providing a diagnosis cross referred to one of the recognised systems which classify psychiatric disease, either ICD-10 or DSM-IV. In Rugamer v Sony Music Entertainment UK Ltd and ors [2001] IRLR 644 the EAT upheld two Tribunal decisions in which psychological overlay was held not to be a physical impairment for the purposes of the DDA. Furthermore, as there was no satisfactory evidence to show that the applicants had a diagnosed or diagnosable clinical condition of a recognised type, they had also failed to show that they had a clinically well recognised illness.
Although an expert may not be able to give direct evidence as to what impact a disability has upon an individual's normal day-to-day activities, s/he may be able to state that the fatigue or pain or loss of memory etc referred to by the applicant are typical of, and/or likely to be linked to, the physical or mental disability in question. This may be particularly useful where someone has been dismissed for poor performance or inappropriate behaviour if the respondent denies that this was related to the disability for the purposes of section 5(1) of the DDA. If evidence of such a link is produced, a tribunal can only decide that there was no such link if it has and explains its reasons for rejecting the expert evidence, see Edwards v Mid Suffolk DC [2001] IRLR 190.
If an applicant was still receiving treatment (such as medication or counselling) at the material time, the expert should be asked to say what effect the condition would have had (i) if no treatment had been provided and; (ii) if the treatment had stopped at the material time. Unless the continuing treatment had produced a permanent improvement at the time of the discrimination, the tribunal will be required to disregard the beneficial effects of the treatment in deciding whether the applicant is a disabled person, see Schedule 1 paragraph 6 of the DDA. If it had produced a permanent (but incomplete) improvement, only the effects of the continuing treatment will be disregarded, see Abadeh v British Telecommunications above.
Expert evidence will often be useful and may even be essential. However, it will rarely be a complete substitute for direct evidence from the applicant about the impact which a condition has upon an applicant's day to day activities. This is particularly true in cases involving stress or depression, in which medical witnesses will not be able to give much direct evidence about the impact of the condition upon a particular applicant's normal day-to-day activities. Instead, they will often have to rely upon what they were told by the applicant during any examination. For this reason it will usually be best to ensure that the applicant gives detailed evidence of the effect of the condition upon his or her day to day life, to confirm and explain the account given in any medical report. A combination of detailed factual evidence from the applicant and focussed medical evidence which concentrates on the most relevant matters will allow the case to be put at its best.