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When an employee’s competence is questioned and the issue of mental health arises, the consideration of disability adds a layer of complexity.  Many employers worry about the added cost that might arise should am employee make a claim to a tribunal but in only real risk factor arises when the case becomes complex.  This blog looks at some of the key points to reduce the anxiety.
 
This article focuses on the provisions concerning disability discrimination first contained in the Disability Discrimination Act 1995, re-enacted with some significant changes in the Equality Act 2010. That said the 2001 case of De Keyser v Wilson remains key in matters of medical reports.  The article does not look at the human rights issues that might also arise. 
 
From a practical point of view, employers will wish to have a report on the mental health of an individual to assess fitness for work, type of work, extent of adjustments required, stakeholder issues and risk factors (safety, insurance etc.).   The employees’ GP, a local Psychologist and/or occupational health professional can assist as employers can and should take into account existing medical documentation, including documents and letters generated by a general practitioner (as per J v DLA Piper and Rayner v Turning Point). This information is usually sufficient for an employer to draw practical and sensible conclusions.
 
However, if a genuine reason to doubt the credibility of the information to hand, or the issue is ‘sophisticated and difficult,’ then the employer may wish to consider more specific advice form an expert. 
 
Doubt might include where the practitioner accords blame on the employer or where home factors are known to be an issue. Sophisticated and difficult includes those cases involving high costs.
 
If the matter is sophisticated and difficult an employer is almost certain to be placed in significant difficulty and so will seldom proceed without specialist expert evidence (the case law here is found in RBS v Morris).  
 
The issue that arises most often is that the employee refuses to cooperate with an employer offering a choice or (three) professional witnesses?
 
In such cases the Tribunal then will recognise that the employer can only make sense of what is in front of them and is likely to direct that an examination should be undergone by the employee at a case management stage (i.e. pre-hearing).  This enables both parties to be on the same level and that they may reflect on the findings of the professional before proceeding (or withdrawing the claim).   
 
An employee who refuses to comply with the court order can expect to have a stay of proceedings (i.e. an order that stops the claim progressing).
 
The reasons a stay is used were set out by set out in the judgement of Sachs LJ in Lane v Willis “The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to the action, act when deciding whether to take the somewhat strong course of staying the action if a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an ‘invasion of personal liberty’. Accordingly it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination.”
 
An alternative order is “an ‘unless order’ requiring the claimant to present himself for examination by a certain date, with the consequence that his case would be struck out for non-compliance if he refused or was otherwise unco-operative” (see Abegaze v Shrewsbury College of Arts and Technology)
 
These two amount to the same, they rebalance the inequality from an uncooperative employee, and have be confirmed in a recent case Government Communications HQ v Bacchus.  In Bacchus, the employee refused to co-operate with the obtaining of a psychiatric report by the Respondent, declining to attend any of three experts put forward by the employer , while obtaining his own psychiatric report and makes interesting reading for those interested in EAT procedures.
 
Cases:
Abegaze v Shrewsbury College of Arts and Technology: [2010] IRLR 238.
De Keyser v Wilson: [2001] IRLR 32
Government Communications HQ v Bacchus: [2012] UKEAT/0373/12/LA
Lane v Willis: [1972] I WLR 333
 
Acknowledgement.
We thank Kate Manning of  CaseCheck for bringing the EAT case of Bacchus to our attention.
 
 

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