Government Communications Headquarters v Bacchus

Where a claimant unreasonably refuses a medical examination required by the respondent, the decisive question is not simply whether the tribunal could determine disability from existing records. The respondent must show that it cannot properly prepare its case without the examination. If that test is met, an order is ordinarily reasonable in the interests of justice.

Expert psychiatric evidence may be material not only to disability status and its timing, but also to substantial disadvantage, the effectiveness and reasonableness of adjustments, causation and remedy. A tribunal should not deprive a respondent of relevant expert evidence merely because it can proceed without it. An unless order, with strike-out for non-compliance, may be the proportionate sanction.

The claimant brought disability discrimination and other employment claims. He alleged anxiety and depression, and sought to establish that he was disabled and that adjustments should have been made.

Although both parties initially contemplated psychiatric evidence, the claimant refused to attend examinations by any of the respondent's proposed experts. He nevertheless obtained his own psychiatric report. The Employment Tribunal held that his objections were invalid but refused a stay or strike-out. It directed that neither party could rely on expert evidence.

The respondent appealed against that case-management decision. The central issue was whether the Tribunal had applied the correct test and selected a lawful sanction for the claimant's non-cooperation.

1. Appeal allowed. The Employment Tribunal erred in law by asking whether it could decide disability from the existing material, rather than whether the respondent could properly prepare its defence without an expert examination and report.

2. Applying Lane v Willis, [1972] 1 WLR 333, the applicant for a stay must show, on the particular facts, that it cannot properly prepare its claim or defence without the examination. If that is shown, it will usually be reasonable in the interests of justice to make the order. The test protects personal liberty while preventing an unfair trial.

3. The respondent met that test. The issues were not confined to whether the claimant was disabled. They included when any disability began, substantial disadvantage caused by the relevant provisions, criteria or practices, the efficacy and reasonableness of proposed adjustments, and potentially causation, diagnosis, prognosis and remedy. The existing records did not address all those matters with certainty. Psychiatric evidence was proportionate and legitimate, particularly given the substantial losses claimed.

4. The Tribunal was entitled to consider existing GP, occupational-health and other medical records. That did not justify preventing the respondent from obtaining better and relevant evidence. Its course also failed to account for the resulting prejudice to the respondent.

5. The appropriate response was not immediate strike-out. Following the approach in Abegaze v Shrewsbury College of Arts and Technology, [2010] IRLR 238, the EAT substituted an unless order requiring the claimant to attend examination by the respondent's expert on the specified date. His disability discrimination claim would be struck out if he failed to comply. Further case management was left to the Employment Tribunal.

• Employment Appeal Tribunal: Allowed the respondent's appeal and substituted an unless order requiring the claimant to attend a psychiatric examination.
• Employment Tribunal: By a judgment and reasons dated 9 July 2012, following an oral decision on 25 April 2012, refused a stay or strike-out and directed that neither party rely on expert medical evidence.