Can an ET insist expert medical evidence is provided about an alleged disability and the employer should bear the cost of obtaining it?
The Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s (ET’s) decision that: (i) a claimant’s disability status could not be resolved without expert medical evidence being obtained; and (ii) the respondent should bear the sole cost of obtaining the report where the claimant was unable to pay, on the basis that putting the parties on an equal footing was paramount. The EAT held that the ET had failed to consider the guidance set out in J v DLA Piper UK LLP as to the correct approach for assessing whether a mental impairment constitutes a disability. Further, it was perverse of the ET to order the respondent to bear the cost of the report without first considering other proportionate steps (City Facilities Management [UK] Ltd v Ling).
After several months of sickness absence due to depression and anxiety, the respondent commenced a capability procedure and eventually dismissed the claimant. The claimant brought claims for unfair dismissal and disability discrimination, alleging that the dismissal was discriminatory and that the respondent had failed to make reasonable adjustments that would have enabled her to return to work.
At a case management discussion, the ET identified that it was necessary to decide the preliminary issue of whether or not the claimant was disabled at the relevant time. A pre-hearing review (PHR) was scheduled to consider the issue. No order was made for further medical evidence to be produced in advance of the PHR and neither party appealed the order that the PHR should determine this issue…
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