City Facilities Management (UK) Ltd v Ling

An Employment Tribunal determining whether a claimant is disabled should not assume that expert psychiatric evidence is necessary. It may first determine, from factual evidence, whether the claimant’s ability to undertake normal day-to-day activities has been substantially and long-term adversely affected. A significant effect may permit a common-sense inference of impairment.

The claimant bears the burden of proving disability. The Tribunal is not ordinarily required to obtain further medical evidence for that purpose. Case-management decisions must give effect to every aspect of the overriding objective. It was erroneous and perverse on the facts to adjourn for a joint expert report without exploring available evidence or proportionate alternatives, and to require the respondent alone to meet its cost.

The claimant, a former janitor, brought claims for unfair dismissal and disability discrimination following her dismissal on capability grounds during sickness absence said to involve depression and anxiety.

At a pre-hearing review, the Employment Tribunal declined to determine whether she was disabled. It considered a jointly instructed psychiatric report essential and ordered the employer to pay its full cost because the claimant could not contribute. The employer appealed both decisions.

The central issue was whether the Tribunal had lawfully deferred the disability question for further expert evidence and imposed the whole cost of that evidence on the employer.

1. Appeal allowed. The Employment Judge adopted the wrong approach to the disability issue. The matter was remitted for a fresh hearing before a freshly constituted Employment Tribunal.
2. Under Equality Act 2010, the claimant bore the burden of establishing disability. The Tribunal should ordinarily have heard her factual evidence about the effect of the asserted condition on normal day-to-day activities. That issue does not normally require expert evidence. Where a substantial and long-term effect is established, an impairment may commonly be inferred without resolving difficult medical questions.
3. The Tribunal was not obliged to procure adequate medical evidence for the parties. Expert evidence can be necessary in an appropriate case, but the Judge gave insufficient reasons for treating it as essential before hearing the claimant or considering the available GP records and other evidence. The approach did not reflect the post-2005 law or the guidance in [2010] ICR 1052.
4. The Judge also failed to show that the adjournment considered the proportionality, expedition and expense limbs of the overriding objective. The parties had attended prepared for the pre-hearing review, the claimant had obtained advice, and there was no demonstrated evidential inequality requiring the Tribunal to obtain a consultant’s report.
5. The overriding objective did not justify requiring the employer to pay the whole cost of a jointly instructed expert. No costs jurisdiction was engaged, and the order effectively required the employer to finance evidence which might strengthen the case against it. The Judge had not explored less expensive alternatives, including clarification from the GP, separate expert evidence on the approach identified in EAT/1438/00, or assistance from the Tribunal administration. The order was erroneous in law or perverse.
6. Applying the remittal guidance in [2004] IRLR 763, a fresh Tribunal was appropriate. There had been no merits decision, a different Tribunal could list the matter more quickly, and the original Judge had not engaged with the issue to be determined.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the disability issue for a fresh hearing before a differently constituted Employment Tribunal.
• Employment Tribunal, Leicester: At a pre-hearing review on 6 June 2013, Employment Judge Ahmed declined to determine disability, adjourned for a jointly instructed medical report, and ordered the employer to pay its full cost.