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26th March 2020

Tribunal Tale – Disability Discrimination

Employers are always keen to hear about situations where a Tribunal has struck out a claim by a Claimant who has not acted reasonably if for no other reason than to be reassured that Tribunals are fair and that the idea that the Claimant always gets the benefit of the doubt are misconceived.

In a recent example of exactly that, the issue that came up was that the employer had asked the Tribunal to use its powers to strike out a claim made by an ex-employee where there were allegations of disability discrimination. During the Tribunal process, the issue of whether the Claimant was in fact disabled was being dealt with. The Claimant said she was disabled and the employer disputed that and said that she did not fall within the definition set out in the Equality Act 2010. The employer proposed that instructions be given to joint medical experts to report on the background and to establish if the Claimant was in fact disabled and to report back to the Tribunal on that basis. An offer was made by the employer to pay the cost of that joint report. For reasons best known only to her, the Claimant refused to engage in that process despite the fact that the Tribunal had been happy with the idea and the Employment Judge had made an order in those terms. In particular, she refused to be examined by either of the doctors identified, each of whom were medical experts in their field.

An application was made by the employer to have the case struck out completely in light of the Claimant’s unreasonable refusal and that was granted by the Tribunal. It was decided that the Claimant’s conduct in terms of dealing with the obtaining of expert evidence as ordered by the Tribunal had been unreasonable.

Having heard from both sides in the Claimant’s appeal  against that strike out decision and having considered all of the issues, the Employment Appeal Tribunal decided that the Tribunal had been right to strike out the claim and the Claimant’s request was rejected. First, it said, the Employment Judge had provided sufficient reasons for his finding that her conduct had been unreasonable. Secondly, he had justifiably found that her unreasonable conduct made a fair trial impossible. The Employment Judge had also duly considered a lesser sanction, in particular an ‘unless’ order. But he was entitled to consider that such an order would not have been appropriate in all the circumstances. Finally, as to the idea of instructing different experts, it was clear that the Claimant’s objection to one doctor in particular was not to him personally but to any physical examination, and so an order appointing new experts would be pointless.

A useful reminder to employers that although there has to be some compromise in Tribunal claims, unreasonable conduct by the Claimant is not always going to be tolerated and it is worth considering the option of applying for strike out in circumstances like the ones that arose in this case.

If you have any questions on any of the issues mentioned in the above article, please contact Russell Eadie.

26th March 2020