Leeks v St Georges Heathcare NHS Trust

In a disability discrimination claim under the Disability Discrimination Act 1995, a tribunal must be able fairly to decide whether the claimant has a physical or mental impairment and assess its effects. Evidence of consequences alone will generally be insufficient. The underlying medical condition must be disclosed so that the impairment and any reasonable adjustments can be analysed. Expert evidence is not invariably required where the condition is agreed or obvious. A tribunal may stay proceedings if necessary information is withheld, although case-management measures may be considered to limit publicity.

Ms Leeks brought claims against her employer for disability discrimination, failure to make reasonable adjustments and direct discrimination. At a case-management hearing, the Employment Tribunal ordered disclosure of the condition or diagnosis relied upon and stayed the claim when that information was not provided. The Employment Appeal Tribunal refused permission to appeal under rules 3(7) and 3(10) of its Rules and Procedure. The issue before the Court of Appeal was whether the claimant could proceed by disclosing only the adverse consequences of her condition, or could be required to disclose the underlying medical condition to the tribunal.

1. The application for permission to appeal was refused.
2. The court’s duty is to act fairly between the parties and to undertake its fact-finding responsibilities. For the purposes of section 1(1) of the Disability Discrimination Act 1995, the tribunal must have the evidence necessary to assess whether there is a physical or mental impairment, its adverse effects and what reasonable adjustments may be required.
3. Evidence of the consequences of a condition alone is insufficient. Those consequences can be fairly and adequately assessed only when the tribunal knows the medical condition giving rise to the alleged disability. The tribunal may therefore require disclosure of that condition and, where necessary, supporting medical evidence.
4. Expert medical evidence is not required in every case. It may be unnecessary where the condition is agreed between the parties or is so obvious that medical proof is not needed. That qualification does not remove the tribunal’s need for access to the condition itself.
5. The Employment Tribunal was justified in imposing a stay because the claimant was willing to disclose the effects of the condition but not the condition to the tribunal. A person bringing a claim must expect to provide the court or tribunal with the information needed for a fair assessment, notwithstanding legitimate concerns about publicity.
6. The Court of Appeal did not determine a case-management solution, but recognised that a procedure restricting publicity concerning the medical condition might alleviate those concerns.

• Court of Appeal (Civil Division): On 17 November 2011, Lord Justice Pill refused the application for permission to appeal. The decision is reported at [2011] EWCA Civ 1551.
• Employment Appeal Tribunal: HHJ Serota QC refused the renewed application under rule 3(10) on 20 May 2011, following refusal under rule 3(7) by HHJ Peter Clarke on 18 January 2011.
• Employment Tribunal: At a case-management hearing on 28 November 2010, the Tribunal ordered disclosure of the condition or diagnosis relied upon and stayed the claim when disclosure was not made.